Lopez v. Astrue

Filing 30

ORDER AND OPINION - Because the ALJ's decision contained no harmful legal error and was based on substantial evidence, IT IS HEREBY ORDERED that Plaintiff's Motion at Docket 20 is DENIED. The final decision of the Commissioner of the Social Security Administration is affirmed. Judgmentshall be entered accordingly. (See document for further details). Signed by Judge H Russel Holland on 4/14/11. (LAD)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ARIZONA

Angelita Lopez,
Plaintiff,
vs.

Michael J. Astrue, Commissioner of the
Social Security Administration,
Defendant.

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No. 2:09- cv -2655 - HRH

ORDER AND OPINION

Procedural History
This is an action for judicial review of the denial of Supplemental Security Income and
disability insurance benefits under Title XVI of the Social Security Act, 42 U.S.C. §§ 401-434.
The parties’ briefing on this matter is complete.1 Oral argument has not been requested and is
not deemed necessary.
Procedural Background
Plaintiff is Angelita Lopez. Defendant is Michael J. Astrue, the Commissioner of Social
Security. On May 31, 2006, Ms. Lopez filed an application for a period of disability and
disability insurance benefits and Supplemental Security Income benefits with an amended

1

Docket Nos. 20, 23, 29.
—1—

alleged onset date of disability beginning August 1, 2005.2 Plaintiff alleged that she was disabled
because of obesity, depression, depressed intellectual functioning, and carpal tunnel syndrome.
Plaintiff’s application was denied initially and upon reconsideration. After a hearing on May
14, 2008 the administrative law judge (“ALJ”) denied plaintiff’s claim. On October 23, 2009,
the Appeals Council denied plaintiffs’ request for review, thereby making the ALJ’s July 22,
2008 decision the final decision of the Commissioner.
On January 24, 2010 Ms. Lopez passed away. Her daughter, Destini Scadden, has substituted
in as the party in interest.
General Factual Background
Appended to this order at Appendix A is the court’s detailed summary of the medical
evidence and records which are before the court for purposes of this appeal.
Hearing Testimony
A. Plaintiff
Plaintiff was born on December 4, 1964.3 She was 43 years old at the time of the
2008 hearing.4 She was 5' tall and at the time of the hearing weighed 300 pounds.5 Plaintiff had

2

Administrative Record (“Admin. Rec.”) at 105, 108, 12-13.

3

Admin. Rec. at 25.

4

Admin. Rec. at 34.

5

Admin. Rec. at 41.
—2—

a GED.6 Plaintiff’s past relevant work includes customer service in a call center.7 At the time of
the hearing, plaintiff was on Prozac.8
Plaintiff testified that she stopped working in March 2004 after having surgery, but alleged
that he disability began on September 30, 2003, the date on which she ceased work due to
persistent pain.9 After her surgery, fatigue, leg pain, and drowsiness as a side-effect from her
medications prevented her from returning to work.10 In 2005, she was diagnosed with diabetes.11
In 1990 she had carpal tunnel release surgery performed on both wrists.12 She began seeing
neurologist Dr. Wang in 2005 and receiving mental health care with Dr. Hilts in 2006.13 She was
treated for arthritis of the knees by Dr. Hartfield, who gave her cortisone shots.14
Plaintiff testified that she cared for her son and parents, although they were all mostly selfsufficient.15 She made her bed, did light housework, shopped for groceries using a scooter, could
not climb stairs due to pain in her legs, and occasionally used a walker.16 She spent between two

6

Admin. Rec. at 35.

7

Admin. Rec. at 25.

8

Admin. Rec. at 46.

9

Admin. Rec. at 35-38.

10

Admin. Rec. at 41.

11

Id.

12

Admin. Rec. at 42.

13

Admin. Rec. at 43.

14

Admin. Rec. at 46-47.

15

Admin. Rec. at 47-48.

16

Admin. Rec. at 48-50.
—3—

to three hours each day on her feet, laid down for two or three hours per day, and would sit for
three to four hours per day, but could not sit for more than twenty or thirty minutes at a time
before her legs began to feel numb.17 Plaintiff testified that she could carry a gallon of milk at
most.18 She had no apparent social problems, as she testified that she had friends who would
visit her.19 At the time of the hearing she weighed about 310 pounds, and could not maintain
weight loss due to insulin and diet issues.20 Her doctor recommended gastric bypass surgery, but
her insurance denied her claim.21
B. Vocational Expert
David Janus testified as the vocational expert.22 The ALJ asked Janus to consider a
hypothetical person of the same age and education as Lopez who could on occasion lift twenty
pounds, regularly lift and carry up to ten pounds, stand and walk for at least two hours in an
eight hour work day, sit for at least six hours per work day, only occasionally climb, balance,
stoop, kneel, crawl, and crouch, never use ladders, ropes, or scaffolds, and who also needed to
avoid concentrated exposure to cold, heat, vibration, and fumes and moderate hazards.23 Such a
person could perform Lopez’s past relevant work.24 If that same individual could on occasion
17

Admin. Rec. at 51.

18

Admin. Rec. at 52.

19

Admin. Rec. at 52-53.

20

Admin. Rec. at 53-54.

21

Admin. Rec. at 54.

22

Id.

23

Admin. Rec. at 55-56.

24

Id.
—4—

lift only ten pounds, regularly lift and carry up to ten pounds, stand and walk for at least two
hours in an eight hour work day, sit for at least six hours per work day, only occasionally climb,
balance, stoop, kneel, crawl, and crouch, never use ladders, ropes, or scaffolds, and who also
needed to avoid concentrated exposure to cold, heat, vibration, and fumes and moderate hazards,
she could still perform Lopez’s past relevant work.25 If that person needed to alternate between
sitting and standing, they could still work; unless they needed to sustain twenty or thirty minutes
of stretching or standing while changing position.26 If that person also had moderate limitations
on the ability to remember, understand, and carry out detailed instructions and maintain attention
and concentration for extended periods of time, she would not be able to perform Lopez’s past
relevant work.27 But this hypothetical person could perform other jobs that exist in the local and
national economy, such as assembler or addresser, which are both sedentary, unskilled jobs.28
Both of those jobs require frequent bimanual dexterity and are fast-paced, but could “most
likely” be performed by an individual with moderate limitations on concentration, persistence
and pace due to borderline intelligence and depression.29 If the described hypothetical person
also suffered from severe pain which seriously affected ability to function, that person would
probably be unable to perform any work.30 If that person needed to take medications for pain

25

Admin. Rec. at 56.

26

Id.

27

Admin. Rec. at 57.

28

Id.

29

Admin. Rec. at 58.

30

Admin. Rec. at 59.
—5—

and lie down rest during the day for thirty minute intervals, that person could work at Lopez’s
past relevant work; but could not work any jobs if those breaks were unscheduled.31 If the
claimant’s testimony regarding needing to lie down for two to three hours per day were true,
such a person would be unable to work.32
The ALJ’s Decision
The ALJ applied the five-step sequential analysis used to determine whether an individual is
disabled.33 At Step One, the ALJ found that plaintiff had “not engaged in substantial gainful
activity since September 30, 2003, the alleged onset date.”34 At Step Two, the ALJ found that
plaintiff had the following impairments: diabetes mellitus with neuropathy, obesity, and an
affective disorder.35 Plaintiff had been receiving treatment for diabetes and neuropathy.36
The ALJ concluded that plaintiff’s combination of impairments did not meet one of the listed
impairments in 20 CFR Part 404, Subpart P, Appendix 1, at Step Three.37 The ALJ found that
plaintiff had mild restriction in activities of daily living, needing some help with dressing and
bathing, but doing the normal activities of running a household.38 Plaintiff cared for a minor
child, drove a vehicle, shopped, and attended appointments. In social functioning, plaintiff was
31

Id.

32

Admin. Rec. at 60.

33

Admin. Rec. at 17-19.

34

Admin. Rec. at 19.

35

Id.

36

Id.

37

Id.

38

Admin. Rec. at 20.
—6—

found to have mild limitation.39 Plaintiff had reported living in a home with the father of her
children, regularly talked with friends and family on the phone, was sometimes visited by
friends, and testified to living with her parents at the time of the hearing. Citing the plaintiff’s
consultations with Dr. Huddleston and Dr. Young, plaintiff was found to have moderate
difficulties with concentration, persistence, and pace.40 Dr. Huddleston noted that plaintiff was
casually attired with good grooming and hygiene, alert and 4x oriented, with eurythmic mood
with a mild aspect of depression. She affected full range and appropriate mood state, denied any
history of delusion, paranoid thoughts, perceptual or sensory disturbances. She reported crying
over minor matters and helplessness against her health problems. Her cognitive scores were
borderline, but Dr. Huddleston opined that plaintiff’s range was likely low-average, and plaintiff
was opined to have a good prognosis for returning to work. Her main limitation was moderate
limitation in the ability to understand, remember, and perform detailed instructions and maintain
attention and concentration for extended periods. The ALJ also considered the more recent
psychological evaluation by Dr. Young, who noted good hygiene and informal attire, good eye
contact, alertness, clear and reasonably paced speech, logical, goal directed, and appropriate
thought process, and good attention. Plaintiff’s affect was appropriate, her mood was serious but
happy, and insight and judgment were fair. Plaintiff scored 27 out of 30 on the Mini-Mental
Status exam, was oriented 3x, and had good immediate memory. She had difficulty counting
serial sevens and recalling words after short delay. Spelling, geometry, and three-step
instruction tests were completed, plaintiff reported feeling worthless, helpless, and hopeless, and

39

Id.

40

Id.
—7—

having difficulty concentrating. Dr. Young completed a medical source statement and opined
that plaintiff would have moderate difficulty in maintaining attention and concentration for
extended periods and maintaining socially acceptable behavior and to adhere to basic standards
of neatness and cleanliness. There was no evidence of decompensation.41 Plaintiff did not have a
mental impairment or combination of impairments that caused at least two “marked” limitations
or one “marked” limitation and “repeated” episodes of decompensation, and thus did not meet
paragraph B or C criteria.
Considering the entire record, the ALJ found that plaintiff had the residual functional capacity
(“RFC”) to perform sedentary work as defined in 20 CFR 404.1567(a) and 416.967(a); she could
lift and carry up to ten pounds at any time, sit six hours and stand or walk two hours in an eight
hour workday with alternation between sitting and standing for at least 30 minutes, occasionally
climb, balance, stoop, kneel, crouch and crawl, but was unable to climb ladders, ropes, and
scaffolds.42 Plaintiff was found to need to avoid concentrated exposure to cold, heat, vibration,
and fumes, and avoid moderate exposure to hazards such as unprotected heights and moving
machinery.43 Due to plaintiff’s depressive disorder, she was found to be moderately limited in
the ability to understand, remember and perform detailed instructions and maintain attention and
concentration for extended periods.44

41

Admin. Rec. at 21.

42

Id.

43

Id.

44

Id.
—8—

In making this determination, the ALJ was required to assess plaintiff’s credibility in her
testimony.45 The ALJ found that plaintiff’s medically determinable impairments could
reasonably be expected to produce her alleged symptoms, but her statements concerning the
intensity, persistence, and limiting effects of these symptoms were not credible to the extent that
they were inconsistent with the RFC assessment.46 The ALJ found that the record did not show
the plaintiff’s diabetes, obesity, and fatigue to be disabling. The ALJ noted plaintiff’s thirty-five
year history of smoking a pack and a half of cigarettes daily, not liking vegetables and eating
only ramen noodles contrary to doctor recommendations.47 Despite uncontrolled morbid obesity
and diabetes, the medical records did not indicate that plaintiff’s diabetes required
hospitalization or more drastic treatment beyond her monthly checkups and prescription refills.
And despite plaintiff’s testimony of minimal daily activity, the record, including plaintiff’s
reports to doctors, showed her to be more active. Additionally, clinical examinations, such as the
October 2005 motor examination and the August 2006 physical evaluation, showed greater
physical ability than plaintiff testified to, including plaintiff’s 2006 statement to Dr. Huddleston
that she usually woke at 5:00 a.m. and took care of her household chores and groomed well.48
The majority of the medical opinions indicated no disabling condition.49 An October 2005
motor examination revealed normal muscle tone without atrophy, rigidity, spasticity or

45

Admin. Rec. at 21-23.

46

Admin. Rec. at 22.

47

Admin. Rec. at 23.

48

Id.

49

Admin. Rec. at 23-25.
—9—

fasciculation. An August 2006 physical examination by Dr. McPhee noted that plaintiff was
unstable when walking in tandem, could rise on her toes and heels but not walk on them, could
not squat but could fully bend her lumbar spine, stand from a chair, remove and put on footwear,
and get onto the table. Her range of motion in elbows, shoulders, and wrists were normal, and
although she had positive signs for carpal tunnel syndrome, there was no neurological weakness,
with sensation intact. Plaintiff had bilateral pain of the calves, but sensation was intact with no
weakness. A more recent opinion by Dr. Halloum in 2007 was also noted.
Diagnostic examinations of plaintiff also did not reveal a disabling impairment: an August
2005 electromyogram showed normal arms and mild spinal neuropathy; a December 2004 X-ray
of plaintiff’s spine showed mild scoliosis and minimal degenerative spur formation. Although
weight loss was recommended, plaintiff reported that she did not exercise. Ultrasounds and Xrays of plaintiff’s right knee revealed no medically determinable diseases, defects, fractures, or
dislocations. Although plaintiff testified that side effects from her medications prevented her
from working, she denied any side effects to Dr. Wang in October 2005. None of the opinions
from Drs. McPhee, Halloum, Huddleston, and Young indicated that plaintiff had a disabling
condition; Dr. Wang recommended weight loss, and Dr. Hilts agreed that nothing was wrong
with plaintiff (although Dr. Hilts also opined in April 2008 that plaintiff would have a severe
work restriction). The ALJ relied on the state agency medical opinions because they were
consistent with the record as a whole.
The ALJ considered the plaintiff’s daughter’s third-party function report indicating that
plaintiff needed assistance dressing, grooming, did not help around the house, needed to adjust
legs hourly, and could pay attention and follow instructions depending on medication.

— 10 —

At Step Four, the ALJ found that plaintiff was unable to perform any of her past relevant
work.50 The ALJ relied on the vocational expert’s testimony to find that plaintiff’s residual
functional capacity prevented her from engaging in call center customer service. Plaintiff was
defined as a younger person at the time of the hearing, with a GED, and the Medical-Vocational
guidelines directed a finding of “Not Disabled” whether or not job skills were transferable. At
Step Five, the ALJ found that jobs existed in significant numbers in the national economy that
plaintiff could perform, and thus she was not disabled.51 Relying on the vocational expert’s
testimony due to the existence of non-exertional impairments, the ALJ found that plaintiff could
have successfully adjusted to work that existed in significant numbers in the national economy.52
Standard of Review
The Social Security Act provides for payment of disability insurance benefits to people who
have contributed to the Social Security program and who suffer from a physical or mental
disability, and Supplemental Security Income to those who cannot work.53 For purposes of the
Act, a “disability” is defined as the “inability to engage in any substantial gainful activity by
reason of any medically determinable physical or mental impairment which can be expected...to
last for a continuous period of not less than 12 months.”54 A person is not disabled if he or she is

50

Admin. Rec. at 25.

51

Admin. Rec. at 26.

52

Id.

53

42 U.S.C. § 423(a)(1).

54

42 U.S.C. § 423(d)(1)(A).
— 11 —

capable of engaging “in any...kind of substantial gainful work which exists in the national
economy.”55
Upon denial of disability benefits after a hearing by an ALJ, a claimant may request that the
SSA Appeals Council review the ALJ’s decision.56 “Where, as here, the Appeals Council denies
a request for review of an ALJ’s decision, the decision of the ALJ represents the final decision of
the Commissioner.”57 After a final decision of the Commissioner, the claimant may seek judicial
review by the district court.58
On de novo review, a district court may enter, upon the pleadings and a transcript of the
record, a judgment affirming, modifying, or reversing the ALJ’s decision, with or without
remanding the case for a rehearing.59 The district court must uphold the ALJ’s decision if it is
supported by substantial evidence and the ALJ has applied the correct legal standards.60

55

42 U.S.C. § 423(d)(2).

56

20 C.F.R. § 404.967.

57

Baston v. Commissioner of Social Sec. Admin., 359 F.3d 1190, 1193 n.1 (9th Cir. 2004)
(citing 20 C.F.R. §404.981).
58

42 U.S.C. §405(g).

59

42 U.S.C. §405(g).

60

Howard ex rel. Wolff v. Barnhart, 341 F.3d 1006, 1011 (9th Cir. 2001). See also
Matney v. Sullivan, 981 F.2d 1016, 1019 (9th Cir. 1992) (citing Gonzalez v. Sullivan, 914 F.2d
1197, 1200 (9th Cir. 1990)).
— 12 —

Discussion
Plaintiff requests summary judgment by challenging the Commissioner’s determination at
Step Three in failing to evaluate obesity, and at Step Five, at which step the burden of proof lies
on the Commissioner to show that other work exists in the national economy that plaintiff would
be capable of performing.61 Plaintiff contends that: 1) the ALJ’s Residual Functional Capacity
assessment establishes that plaintiff is unable to work; 2) the ALJ failed to evaluate plaintiff’s
obesity at Step Three as required by Policy Ruling 02-1p and failing to discuss her combined
impairments; and 3) the ALJ failed to properly weigh medical source opinion evidence,
subjective complaints, and third party reports during the RFC assessment, leading to error at Step
Five. Plaintiff requests a remand for computation of benefits.
1. Residual Functional Capacity Assessment and Plaintiff’s Ability to Work
As set out above, at Step Four of the analytic process, the ALJ found that plaintiff was unable
to perform her past relevant work. He went on to find, based upon the testimony of the
vocational expert, that there was work in the local and national economy for a person having
those limitations the ALJ found plaintiff to have: namely, an assembler position or an addresser,
both of which positions are sedentary and appropriate for an unskilled person with the plaintiff’s
limitations.62
On appeal, plaintiff argues that when the vocational expert was asked if those limitations
would preclude the performance of the jobs of assembler and addresser, the expert responded

61

Docket No. 20.

62

Admin. Rec. at 57.
— 13 —

that “most likely [plaintiff would] not ... be able to sustain the work.”63 This latter colloquy took
place between counsel and the vocational expert. In making the foregoing argument, plaintiff
has lost sight of the fact that counsel altered the hypothetical question which had been put to the
vocational expert by the ALJ. Specifically, the vocational expert was asked by counsel:
Q: If an individual was of that profile offered to you by the Administrative
Law Judge but we added that there is moderate limitations in the ability to
sustain concentration, persistence and pace due to borderline intelligence,
would that have an effect on the ability to perform claimant’s past work?
[64]
After some clarification, counsel revised the question as follows:
Q: I guess you said that there was no past workA: I said there was noQ: - for the Judge’s hypothetical so let me revise that and say if we were to add
moderate limitations in the ability to sustain concentration, persistence and pace due to
borderline intelligence and depression, would that prevent such an individual from
performing those alternate jobs? [65]
It is in that context that the vocational expert in substance responded, “No.”66
The ALJ did not find, and the record would not support, a finding of borderline intelligence.67
For the preceding reasons, plaintiff’s first contention on appeal is without merit.

63

Admin. Rec. at at 58-59.

64

Admin. Rec. at 58.

65

Admin. Rec. at 58 [emphasis supplied].

66

Admin. Rec. at 59.

67

Gallant v. Heckler, 753 F.2d 1450, 1452-53 (9th Cir. 1984).
— 14 —

2. ALJ’s Step Three Analysis
Plaintiff argues that the ALJ’s decision was legally deficient at Step Three of the evaluation
process because it failed to consider plaintiff’s obesity, and because it failed to discuss the effect
of plaintiff’s combined impairments.68
Plaintiff was between 5' and 5'3" and consistently weighed in excess of 300 pounds during the
period at issue. Plaintiff argues that, based on this evidence, the ALJ was obligated to consider
the effect of obesity in relation to the musculoskeletal Listings 1.02 and 1.04, and the
neurological and endocrine Listings 11.14 and 9.08, as well as the mental Listings 12.04 and
12.05.69
Obesity is not an impairment on the Listings at Step Three.70 In effect, plaintiff argued that
the ALJ should have evaluated her obesity as equivalent to some Listing-level impairment, or as
an impairment that, combined with another impairment, was equivalent to some Listing. The
ALJ is not required to discuss the combined effects of impairments or compare them to any
listing in an equivalency determination unless the claimant presents evidence in an effort to
establish equivalence.71 Plaintiff argues that she presented evidence where the diagnosis and
clinical findings of obesity suggested that the possibility for a listed impairment existed,

68

Policy Ruling 02-1p (rules for evaluating obesity); Listings 1.02, 1.04, 11.14, 9.08.

69

C.F.R. § 404, Appx. 1, Subpt. P, Reg. No. 4.

70

SSR 02-1p (“Obesity may be a factor in both “meets” and “equals” determinations.
Because there is no listing for obesity, we will find that an individual with obesity “meets” the
requirements of a listing if he or she has another impairment that, by itself, meets the
requirements of a listing...[or] if there is an impairment that, in combination with obesity, meets
the requirements of a listing.” [emphasis added]).
71

Burch v. Barnhart, 400 F.3d 676, 683 (9th Cir. 2005).
— 15 —

requiring the ALJ to discuss them.72 Plaintiff expands her arguments in her reply briefing,
arguing that her obesity should have been considered in its relationship to low intellectual
functioning at Listing 12.05(C).
Plaintiff’s arguments in this matter are also without merit. Because obesity is not a listed
impairment, the ALJ is not obligated to consider it at Step Three. Obesity only needs to be
considered as it relates to plaintiff’s Residual Functional Capacity at Steps Four and Five, except
in those circumstances when, either alone or in combination with other listing-level impairments,
it is equivalent to a listing-level impairment. This is a high standard, as listing-level impairments
are designed to weed out the clear cases where a person is obviously disabled. For this reason,
obesity is not a listing-level impairment, and the impairments complained of only reach listing
level when they are extremely severe. Plaintiff’s bald allegations that her joint dysfunction
(Listing 1.02), spinal disorder (Listing 1.04), peripheral neuropathy (Listing 11.14) or diabetes
mellitus with neuropathy (Listing 11.14), alone or in conjunction, reach this level of severity
have no support in the record. The ALJ stated that no physician opined that plaintiff’s obesity
met or equaled Listing-level criteria, which is all that is required without strong medical
evidence to the contrary.73 The ALJ was thus not obligated to explicitly consider obesity in
further detail at Step Three.
Plaintiff’s argument that the ALJ should have considered Listing 12.05(C), mental
retardation, is similarly not supported by the evidence. A claimant should be found disabled
when demonstrating “[a] valid verbal, performance, or full scale IQ of 60 through 70 and a

72

Marcia v. Sullivan, 900 F.2d 172, 174 (9th Cir, 1990).

73

Admin. Rec. at 20, see 390-91, 397.
— 16 —

physical or other mental impairment imposing an additional and significant work-related
limitation of function,”74 At Step Three, the ALJ considered plaintiff’s affective disorder, but did
not consider whether plaintiff was mentally retarded. An agency regulatory clarification does
not require a medical diagnosis of “mental retardation” in explicit terms for Listing 12.05(c) to
be satisfied.75 This is because “[t]he four major professional organizations within the United
States that deal with MR [mental retardation] have each established their own definition of
MR.”76 Thus, the agency’s definition has, as a baseline, a required I.Q. score below 70, which is
required by all professional definitions for mental retardation. However, the agency requires that
the IQ score be “valid” in order to trigger inquiry into Listing level impairment. Because the
lone IQ test with a performance of 70 cited by the plaintiff was said to be invalid by its
examining doctor, who opined that the plaintiff’s IQ was higher and likely to be in the mid-80s
and low-average, the test is presumptively invalid. Moreover, the explanatory material provided
by the agency under 12.00, mental disorders, holds that the results of a standard intelligence test
are only part of the overall assessment, and so the narrative report that accompanies the test
results should comment on whether the I.Q. scores are themselves valid and consistent with the
individual’s developmental history and degree of functional limitation.77 Despite the fact that the
Social Security Act is remedial and the agency has expressly singled out individuals with mild
mental retardation for special treatment in determining entitlement to benefits, it would be

74

Listing 12.05.

75

67 Fed. Reg. 20018, WL 661740 (2002), Technical Revisions to Medical Criteria for
Determinations of Disability.
76

Id.

77

20 C.F.R. Pt. 404, Subpt. P, App. 1, 12.00(D)(6)(a).
— 17 —

unreasonable to ask the ALJ to ferret out any potential claims that might be inferred from
unreliable evidence. In this instance, the ALJ did not act unreasonably by failing to investigate
further evidence of a low I.Q. score.
3. ALJ’s Consideration of Medical Evidence and Lay Opinions
Plaintiff takes issue with the ALJ’s RFC assessment made prior to reaching Step Four,
arguing that the ALJ did not properly weigh medical source opinion evidence, plaintiff’s own
subjective testimony, and third-party reports.
A. ALJ’s Evaluation of Medical Source Opinion Evidence
Plaintiff claims that the ALJ failed to address the opinions of Dr. Hatfield and Dr. Hilts,
treating physicians. Plaintiff also objects to the weight the ALJ gave to the opinion of treating
physician Dr. Wang as “inapposite,” and examining physician Dr. Halloum because “an
unidentified source (the changes are not initialed)” modified the findings. Plaintiff also argues
that the ALJ did not give substantial weight to the opinion of Dr. McPhee, despite claiming to do
so in the decision.
Cases in this circuit distinguish among the opinions of treating physicians and examining
physicians.78 As a general rule, more weight should be given to the opinion of a treating source
than to the opinion of doctors who do not treat the claimant.79 At least where the treating
doctor's opinion is not contradicted by another doctor, it may be rejected only for “clear and

78

For purposes of this opinion, the term “physician” or “doctor” includes psychologists
and other health professionals who do not have M.D.'s. See 20 C.F.R. § 404.1527 (defining
“medical opinions” as “statements from physicians and psychologists and other acceptable
medical sources,” and prescribing the respective weight to be given the opinions of treating
sources and examining sources).
79

Winans v. Bowen, 853 F.2d 643, 647 (9th Cir.1987).
— 18 —

convincing” reasons.80 “Clear and convincing” reasons are required to reject the treating doctor's
ultimate conclusions.81 Even if the treating doctor's opinion is contradicted by another doctor,
the Commissioner may not reject this opinion without providing “specific and legitimate
reasons” supported by substantial evidence in the record for so doing.82
The opinion of an examining physician is, in turn, entitled to greater weight than the opinion
of a nonexamining physician.83 As is the case with the opinion of a treating physician, the
Commissioner must provide “clear and convincing” reasons for rejecting the uncontradicted
opinion of an examining physician.84 And like the opinion of a treating doctor, the opinion of an
examining doctor, even if contradicted by another doctor, can only be rejected for specific and
legitimate reasons that are supported by substantial evidence in the record.85
At the outset, this court notes that the ALJ considered and discussed all of the following
physicians’ opinions with reasoned and considered analysis. An ALJ is not required to discuss
every line of every page in the administrative record, but only to address those limitations
affecting a disability determination for which medical evidence exists. Although plaintiff
extensively challenges the ALJ’s findings regarding carpel tunnel syndrome, this was never a
central issue during the administrative process. Evidence tending to show carpal tunnel

80

Baxter v. Sullivan, 923 F.2d 1391, 1396 (9th Cir.1991).

81

Embrey v. Bowen, 849 F.2d 418, 422 (9th Cir.1988).

82

Murray v. Heckler, 722 F.2d 499, 502 (9th Cir.1983).

83

Pitzer v. Sullivan, 908 F.2d 502, 506 (9th Cir.1990); Gallant v. Heckler, 753 F.2d 1450
(9th Cir.1984).
84

Pitzer, 908 F.2d at 506.

85

Andrews v. Shalala, 53 F.3d 1035, 1043 (9th Cir.1995).
— 19 —

syndrome is extremely limited compared to the voluminous record, which primarily deals with
diabetes and its correlated obesity, and depression. Further, the ALJ noted several instances in
which doctors noted the paucity of objective evidence supporting plaintiff’s complaints of carpal
tunnel syndrome-related pain.
The ALJ did not explicitly address Dr. Hatfield’s checked box indicating that plaintiff
suffered from “moderately severe” restrictions in functioning.86 This opinion found impairments
related to knee pain and asthma but did not specify any limitations in sitting, standing, walking,
or lifting. However, the ALJ incorporated Dr. Hatfield’s limitations into his decision. Dr.
Hatfield found “mild restrictions” in activities involving unprotected heights, moving machinery,
changes in temperature/humidity, driving, fumes, dust, and gases.87 The ALJ incorporated these
limitations into his decision.88 Dr. Hatfield opined that plaintiff had “moderately severe”
limitations in functioning, but did not describe the specific functional limitations. A “moderately
severe” limitation is defined as an impairment in functioning that may or may not lead to a
finding of disability. The ALJ accepted Dr. Hatfield’s specifically indicated limitations, which
accord with the larger bulk of the medical records indicating there is no disability. If the ALJ
had explicitly addressed this checked box in Dr. Hatfield’s records, this would not have changed
the outcome, even if rejected, because the limitation described merely indicates that plaintiff
may or may not have been disabled.89 However, because the ALJ incorporated all of Dr.

86

Admin. Rec. at 457-458.

87

Id.

88

Admin. Rec. at 21.

89

See Curry v. Sullivan, 925 F.2d 1127, 1131 (9th Cir.1990) (applying the harmless error
standard); Booz v. Sec'y of Health and Human Serv., 734 F.2d 1378, 1380 (9th Cir.1984) (same).
— 20 —

Hatfield’s diagnosed limitations in the RFC findings, the ALJ’s opinion is in accord with Dr.
Hatfield’s opinion, and proper.90
Dr. Hilts, a treating physician, opined that plaintiff suffered severe, constant pain, causing
impairment in ability to function. The ALJ rejected this opinion as inconsistent with Hilts’ own
diagnostic examinations and clinical signs, citing a treatment note sending plaintiff home with
the remark that “there is nothing wrong with the claimant.”91 Plaintiff argues that medical
records, X-rays, nerve conduction studies, and physical examinations show that the ALJ’s
statement that there was nothing wrong with the plaintiff is not supported by substantial
evidence.92 Plaintiff’s brief mistakenly attributes this statement to the ALJ and attempts to refute
it; the ALJ actually cited the statement that “there is nothing wrong” with plaintiff in order to
show inconsistency between Dr. Hilts’ opinion and her own medical records. The ALJ properly
used the medical record and the plaintiff’s argument misconstrues the decision.93 The ALJ
rejected this part of the doctor’s opinion because it was inconsistent with her own treatment
records, not simply because it did not accord with the bulk of the other medical evidence.94 The
ALJ accepted some parts of the doctor’s opinion but not those that conflicted with her own

90

Winans v. Bowen, 853 F.2d 643, 647 (9th Cir.1987).

91

Admin. Rec. at 25, 671.

92

Plaintiff’s Brief at 27.

93

Defendant does not defend the ALJ’s explanation, and offers only the alternative
defense that the opinion was “conclusory,” a rationale upon which this court cannot uphold the
decision.
94

Murray v. Heckler, 722 F.2d 499, 502 (9th Cir.1983).
— 21 —

treatment records. This reason is specific and legitimate.95 There is nothing objectionable about
the ALJ’s interpretation of Dr. Hilts’ medical evidence.
The ALJ gave “substantial weight” to the opinion of treating physician Dr. Wang, but
plaintiff says there is no “opinion” of Dr. Wang. Plaintiff argues that treatment records of
clinical impressions and diagnoses are not opinions, and thus, the ALJ could not have relied on
it. The ALJ’s error in calling Dr. Wang’s records an “opinion” did not prejudice plaintiff, and is
harmless.96 Plaintiff also challenges the ALJ’s decision as inapposite because it does not accept
all of Dr. Wang’s findings of hand and wrist impairments. Dr. Wang’s opinion of plaintiff’s
hand limitations is actually quite sparse: plaintiff reported a decline in hand functioning on
January 11, 2008, and positive Tinel’s sign indicated possible carpal tunnel syndrome.97 The ALJ
did not find that plaintiff was impaired by carpal tunnel, yet gave Dr. Wang’s opinion substantial
weight.98 Dr. Wang only reported “possible CTS [carpal tunnel syndrome]” based on plaintiff’s
subjective complaints.99 The ALJ made it clear that, although plaintiff continued to complain of
carpal tunnel syndrome, objective medical examinations and doctor’s opinions repeatedly
refuted this claim.100 The ALJ noted several instances in which clinical examinations of

95

See e.g., Magallanes v. Bowen, 881 F.2d 747, 751-55 (9th Cir.1989); Andrews, 53 F.3d
at 1043; Roberts v. Shalala, 66 F.3d 179 (9th Cir.1995).
96

See Curry v. Sullivan, 925 F.2d 1127, 1131 (9th Cir.1990) (applying the harmless error
standard); Booz v. Sec'y of Health and Human Serv., 734 F.2d 1378, 1380 (9th Cir.1984) (same).
97

Admin. Rec. at 468.

98

Admin. Rec. at 25.

99

Admin. Rec. at 467-468.

100

Admin. Rec. at 24-25.
— 22 —

plaintiff’s arms revealed normal results: an ultrasound taken in March 2004, and “physical
evaluations showing normal muscle tone with no atrophy, rigidity, spasticity, fasciculation,
swelling or tenderness in any joint, and 4 out of 5 muscle strength in the arms and legs.”101 The
ALJ’s findings here are in accord with Dr. Wang’s diagnosis. Dr. Wang only reported possible
carpal tunnel, based on subjective reports and weak objective findings. The ALJ, looking at the
record as a whole, agreed with this assessment, and found that plaintiff did not suffer severe
limitations from carpal tunnel. The ALJ’s acceptance of Dr. Wang’s opinion is supported by
substantial evidence and comports with the record as a whole.102
The ALJ gave substantial weight to the opinion of consultative examiner Dr. Halloum.
Plaintiff challenges Dr. Halloum’s record as modified by “an unidentified source (the changes
are not initialed).”103 Plaintiff submitted these treatment records as accurate statements to prove
her disability, and then challenged them on appeal. Defendant argues the ALJ “reasonably
interpreted the corrections (which the doctor initialed in places) as Dr. Halloum’s.”104 The court
must affirm the ALJ’s reasonable interpretation of the evidence, it will not substitute its own
judgment for that of the ALJ.105
The ALJ writes in the decision that he gave substantial weight to the opinion of examining
physician Dr. McPhee, but plaintiff says this is not true. The ALJ rejected Dr. McPhee’s opinion

101

Id.

102

See Batson, 359 F.3d at 1196.

103

Admin. Rec. at 444, Plaintiff’s Br. at 28-29.

104

Citing Tommasetti, 533 F.3d at 1038 (where the ALJ’s interpretation of the evidence is
rational, it should be affirmed).
105

Gallant v. Heckler, 753 F.2d 1450, 1452-53 (9th Cir. 1984); Batson, 359 F.3d at 1196.
— 23 —

that plaintiff was limited to occasional handling and fingering.106 Dr. McPhee found that
plaintiff could lift up to 50 pounds occasionally, 25 frequently; walk eight hours per work day,
sit without limitation; occasionally climb, kneel, crouch, crawl; occasionally handle and finger
without feeling limitations, and frequently stoop.107 The ALJ gave substantial weight to Drs.
McPhee and Halloum, finding that plaintiff could lift and carry 10 pounds; sit for six hours and
stand or walk for two hours per work day; occasionally climb, balance, stoop, kneel, crouch and
crawl; and never climb ladders, rope, or scaffolds.108 Thus, the ALJ incorporated all of Dr.
McPhee’s limitations into his decision except for those incident to carpal tunnel syndrome. The
ALJ explained that diagnostic examinations showed normal bilateral extremities and described
plaintiff’s activities which were incongruous with severe pain.109 For these reasons the ALJ did
not credit the opinion of Dr. Halloum on the single point of limitation to occasional fingering
and handling. This is a specific and legitimate reason for disbelieving the controverted opinion
of an examining doctor, and in accord with the bulk of the medical evidence.110 The reviewing
court may not substitute its own judgment for that of the ALJ.111
Based on the foregoing, the ALJ found that plaintiff had moderate limitations in the ability to
sustain memory, concentration, and pace. Plaintiff incorrectly states that the vocational expert

106

Admin. Rec. at 386.

107

Admin. Rec. at 386.

108

Admin. Rec. at 21.

109

Admin. Rec. at 23-25.

110

Andrews v. Shalala, 53 F.3d 1035, 1043 (9th Cir.1995).

111

Batson, 359 F.3d at 1196.
— 24 —

testified that these limitations would preclude her from all work.112 Plaintiff’s misapprehension
of the record has been addressed above.
B. Subjective Complaints
Plaintiff argues that the ALJ’s opinion is not supported by the medical evidence because it
rejected some of plaintiff’s own testimony of her subjective symptoms as inconsistent with
activity reported elsewhere and because clinical signs did not support her activity level. The
ALJ also rejected a lay third-party report with minimal comment. The ALJ gave several
legitimate reasons for rejecting plaintiff’s report, as well as her daughter’s.
I. Plaintiff’s Testimony
The ALJ noted that plaintiff’s testimony, if it were credible, would support a finding of
disabled.113 Plaintiff testified that she stopped working in September 2003 due to fatigue, side
effects from medication, and leg pain. She said that she did not help around the house or assist
her son getting to school. She said she used a walker or cane to ambulate, and drove two or three
times per week.114 She testified that she could lift a gallon of milk, stand or walk up to thirty
minutes at a time for a total of two to three hours per day, and sit for thirty minutes at a time for
a total of two to three hours per day.115

112

Pl. Br. at 29.

113

Admin. Rec. at 22.

114

Admin. Rec. at 36-37, 49-50.

115

Admin. Rec. at 50-52.
— 25 —

When deciding whether to accept subjective symptom testimony from a claimant, the ALJ
performs a two-step analysis.116 In the first step, the claimant must produce objective medical
evidence of one or more impairments that could reasonably be expected to produce some degree
of symptom. In the second step, in the absence of malingering, the ALJ may only reject the
claimant’s subjective testimony as to the severity of the symptoms by making a specific finding
stating clear and convincing reasons for the rejection, including what testimony is not credible
and what facts in the administrative record lead to that conclusion.
Plaintiff submitted some medical evidence that she had impairments which could have
produced her alleged symptoms, and there was no affirmative evidence of malingering, so the
ALJ was required to provide “specific, clear and convincing reasons” to reject plaintiff’s
testimony.117 The ALJ found plaintiff “not entirely credible” because the medical record
indicated that she reported to a consultative examiner that she sustained a higher level of
activity, including running normal household chores and caring for herself, than she testified
to.118 Plaintiff argues that these reasons are not clear and convincing because these activities are
not comparable “to the grueling pace required of a work environment.”119 The plaintiff
incorrectly cites cases and regulations relating to ability to work, rather than cases that deal with
credibility determinations. It is true that grocery shopping and cleaning are not indicative of an

116

Smolen v. Chater, 80 F.3d 1273, 1281-82 (9th Cir. 1996).

117

Id.

118

Admin. Rec. at 22, citing Exhibits 1F, 2F, 3F, 8F, 12F, 28F, and 30F.

119

Pl. Brief at 31, citing Reddick v. Chater, 157 F.3d 715, 720 (9th Cir. 1998).
— 26 —

ability to engage in sustained work activity,120 but the inconsistency between the limitations
which plaintiff’s testimony describes and her prior admitted limitations from the medical record
are legally sufficient reasons to give less credit to plaintiff’s testimony. Another inconsistency
recognized by the ALJ is that plaintiff testified that she could not work due to medication side
effects, but told her treating physicians on several occasions that she was experiencing no side
effects.121 Where the ALJ's credibility assessment is supported by substantial evidence, it will
not be disturbed even where some of the reasons for discrediting a claimant's testimony are
properly discounted.122 Because the ALJ properly identified multiple inconsistencies between
plaintiff’s testimony and subjective reports to doctors, the credibility finding will not be
disturbed.
II. Third Party Report
Plaintiff’s daughter (who is now a party in interest, due to plaintiff’s passing) filed a third
party report attesting that plaintiff needed assistance in completing activities of daily living.123
Plaintiff argues that the ALJ gave no reason for disregarding this report, and states the
established law that an ALJ may not generally reject without comment lay testimony.124

120

Reddick, 157 F.3d at 720.

121

Defendant defends the ALJ’s finding using several impermissible reasons. While a
failure to comply with a prescribed course of treatment may also adversely affect credibility, the
ALJ did not rely on this rationale, and it cannot thus be used to uphold the decision.
Additionally, failure to lose weight is generally not a legitimate reason to discredit a plaintiff for
failure to follow prescribed treatment.
122

Tonapetyan v. Halter, 242 F.3d 1144, 1148 (9th Cir.2001).

123

Admin. Rec. at 24.

124

Smolen v. Chater, 80 F.3d 1273, 1288 (9th Cir. 1996); Ray v. Chater, 934 F.Supp. 347,
350 (N.D. Cal. 1996).
— 27 —

Plaintiff’s daughter reported that plaintiff did not perform housework or cook, but plaintiff
told Dr. Huddleston that she performed normal household activities, such as cooking and
cleaning.125 The standard for rejecting third party lay reports is not high, the ALJ must only
identify specific, germane reasons for discounting the statements.126 That standard was met here.
Conclusion
Because the ALJ’s decision contained no harmful legal error and was based on substantial
evidence, IT IS HEREBY ORDERED that Plaintiff’s Motion at Docket 20 is DENIED. The
final decision of the Commissioner of the Social Security Administration is affirmed. Judgment
shall be entered accordingly.
Dated this 14th day of April, 2011, at Anchorage, Alaska.
/s/ H. Russel Holland
United States District Judge

125

Admin. Rec. at 25, compare Admin. Rec. at 134-35 with Admin. Rec. at 378.

126

See Carmickle, 533 F.3d at 1163-64.
— 28 —

Appendix A: Medical Evidence and Records
A. Physical Impairments
1. Treating Physicians
Dr. Helen Hilts was the primary care provider for plaintiff from June 2005 through March
2008. A September 28, 2005 MRI of the plaintiff’s lumbar spine shows normal shape and
vertebral bodies and unremarkable prevertebral parasagital tissues, with no abnormalities except
for disc desiccation with slight flattening of the L3-4, L4-5, and L5-S1 vertebral areas.127
On August 11, 2005 a nurse referred plaintiff to Dr. George Wang, a neurologist.128 This was
repeated on August 22, 2005.129 An urgent request for authorization to perform an MRI was
again requested by a nurse on August 26, 2005.130 Dr. Hilts referred plaintiff to TMC Advanced
Imaging on September 28, 2005.131
On August 23, 2005 Dr. Mark Stern of the Tri-City Cardiology Consultants gave plaintiff a
cardiac examination.132 The doctor noted several reported episodes of chest pain, combined with
multiple risk factors, including diabetes, cigarette use, hyperlipidemia, and morbid obesity,
and discussed “the absolute emphatic necessity” for plaintiff to stop smoking.133

127

Admin. Rec. at 763-764.

128

Admin. Rec. at 702.

129

Admin. Rec. at 699.

130

Admin. Rec. at 698.

131

Admin. Rec. at 692.

132

Admin. Rec. at 283-284.

133

Admin. Rec. at 284.
— 29 —

Dr. George Wang examined plaintiff on August 23, 2005 for pain of hands and feet, which
plaintiff described as tingling and cold sensations which gradually worsened over the prior three
months.134 Dr. Wang examined plaintiff and recommended further study with wrist braces.135
On August 30, 2005 Dr. Wang evaluated plaintiff’s lower extremities and the tests were
consistent with mild lumbosacral radiculopathy and mild axonal polyneuropathy.136 An
“essentially normal nerve conduction velocity study” was also performed.137
On October 3, 2005, Dr. Mark Stern “absolutely, emphatically” prescribed her to quit
smoking, and noted that she “must lose a significant amount of weight.”138
On October 10, 2005 Dr. George Wang, a neurologist, examined plaintiff for hand and foot
pain, who assessed possible carpal tunnel syndrome and possible peripheral neuropathy and
prescribed weight loss and prescriptions.139
After a sleep study showed sleep apnea, a request for a CPAP machine was made on March 8,
2006.140

134

Admin. Rec. at 297.

135

Admin. Rec. at 297-299.

136

Admin. Rec. at 300-301.

137

Admin. Rec. at 307.

138

Admin. Rec. at 282.

139

Admin. Rec. at 293-295.

140

Admin. Rec. at 664.
— 30 —

Plaintiff returned for a refill on her Percocet prescription on April 17, 2006.141 Further refills
were made on May 23, 2006, September 20, 2006.142
Records show Vicodin and other pain relief prescriptions on December 27, 2005 for severe
pain.143 Vicodin was recorded as not working on December 30, 2005.144 Refills were requested
on January 5, 2006 [mistakenly transcribed as 2005] and granted on January 20, 2006.145 Plaintiff
requested a different pain prescription on February 7, 2006 because her generic pain medications
made her sick.146
Dr. Angela Dagirmanjian, examining plaintiff’s lumbar spine MRI on February 6, 2006 for
Dr. Hilts, found slight scoliosis but an otherwise stable comparison with the prior scan.147
Dr. Hilts refilled plaintiff’s Percocet prescription on April 26, 2006, and recommended further
laboratory testing.148
Because the neurologist found no medical evidence explaining reported pain, plaintiff
returned to Dr. Hilts on February 23, 2006, but was sent home, noted to have “nothing wrong.”149

141

Admin. Rec. at 660.

142

Admin. Rec. at 651-654.

143

Admin. Rec. at 683.

144

Admin. Rec. at 678.

145

Admin. Rec. at 677, 673.

146

Admin. Rec. at 670.

147

Admin. Rec. at 313-314, 351-352.

148

Admin. Rec. at 718.

149

Admin. Rec. at 671.
— 31 —

On July 5, 2006, plaintiff went to Dr. Hilts for chest pain, not wanting to wait for her
appointment the next week.150 She returned on July 26, 2006 for a lab work referral and refill on
pain medications.151 Plaintiff requested a hand-written prescription for Percocet on November 7
and November 13, 2006.152 On November 22, 2006, plaintiff returned to Dr. Hilts for a refill on
her pain medications.153 A further refill was requested on January 2, 2007.154 A refill for Percocet
was written on February 26, 2007.155
On October 23, 2006, Dr. Stephen Hatfield evaluated plaintiff’s complaint of bilateral knee
pain.156 Dr. Hatfield had seen plaintiff one year prior and prescribed Naprosyn, which plaintiff
had ceased taking.157 Plaintiff was injected with pain reducer and diagnosed with severe knee
pain.158 Dr. Hatfield found plaintiff’s medical condition to be moderately severe overall, which
seriously affected ability to function.159

150

Admin. Rec. at 635.

151

Admin. Rec. at 632.

152

Admin. Rec. at 595-596.

153

Admin. Rec. at 633.

154

Admin. Rec. at 592.

155

Admin. Rec. at 587.

156

Admin. Rec. at 456-458.

157

Admin. Rec. at 456.

158

Admin. Rec. at 456-457.

159

Admin. Rec. at 458.
— 32 —

Dr. Hilts authorized prescription refills on March 1, March 14, and March 26 2007.160 A
glucose checking machine and prescription for pain medications were recorded on March 6,
2007, although a note questioned whether plaintiff needed a machine.161
A mammogram was requested “ASAP” on May 4, 2007.162 A secondary mammogram was
requested on June 8, 2007.163
Plaintiff’s Percocet was refilled April 18, 2007.164
On May 4, 2007 plaintiff reported being unable to control her glucose levels and chest pain.165
A progress report completed June 6, 2007 recorded no changes but extreme depression.166
Ibuprofen was prescribed on July 26, 2007.167
On August 17, 2007 Dr. Stephen Hatfield saw plaintiff for longstanding bilateral knee pain.
Prior pain injections, occasional anti-inflammatory drugs, and a knee brace were reported to be
ineffectual.168 Previous MRIs showed nothing other than arthritis and new MRIs were not
recommended, while X-rays showed degenerative joint disease.169

160

Admin. Rec. at 572-574.

161

Admin. Rec. at 582.

162

Admin. Rec. at 570.

163

Admin. Rec. at 569.

164

Admin. Rec. at 568.

165

Admin. Rec. at 557-558.

166

Admin. Rec. at 551-555.

167

Admin. Rec. at 548.

168

Admin. Rec. at 460.

169

Id.
— 33 —

An August 20, 2007 X-ray revealed minor degenerative changes in both knees.170
An endoscope was prescribed on October 5, 2007, along with a Percocet refill.171
Prescriptions were refilled on November 26, 2007, and again on January 18 and February 21,
2008.172
On November 17, 2007 plaintiff saw Dr. George Wang of the Neurology and Sleep Medicine
Associates on referral from Dr. Hilts.173 She had been seen two years prior with carpal tunnel
syndrome, and reported progressively worsening symptoms, which woke her at night and
impaired daily functioning.174 She also reported tingling and numbness of her lower extremities,
and pain like “walking on glass.”175 Because plaintiff was already taking Naprosyn, Cymbalta,
and Lyrica, no medication was prescribed.176
A physical medical assessment form completed by Dr. Wang on November 21, 2007 reported
severe back pain, possible carpal tunnel syndrome, and asthma.177

170

Admin. Rec. at 461-462.

171

Admin. Rec. at 507.

172

Admin. Rec. at 502-503, 495-496.

173

Admin. Rec. at 469-472.

174

Admin. Rec. at 469.

175

Admin. Rec. at 469-470.

176

Admin. Rec. at 470-471.

177

Admin. Rec. at 469-472.
— 34 —

Dr. George Wang evaluated plaintiff on January 11, 2008.178 A decline of hand function was
reported, and positive Tinel’s sign indicated possible carpal tunnel syndrome.179 Additionally,
excruciating leg pain and peripheral neuropathy of the lower extremities was noted.180
On January 29, 2008 plaintiff was tested for leg and back pain. Testing results were consistent
with lumbosacral radiculopathy affecting L5 and S1 levels bilaterally, clinical correlation was
recommended.181
Dr. Wang evaluated plaintiff on March 12, 2008 for complaints of pain in the hands and feet.
Noted to be taking Neurontin and Tramadol, neither of which helped with plaintiff’s extreme
skin sensitivity that made walking feel like “trying to walk on glass.”182 Plaintiff described back
pain as an 8 on a scale of 1 to 10, and also reported hand pain which made daily activity
difficult.183 Plaintiff was taking Novalog, Lantus, metformin and Percocet, but was not in acute
distress and mentally sound, so physical therapy was planned.184
Dr. Hilts prescribed a walker for plaintiff’s knees on November 1, 2008. Platintiff was 5'4"
and weighed 280 pounds, but prognosis was good.185
2. Examining Physicians

178

Admin. Rec. at 466-468.

179

Admin. Rec. at 468.

180

Id.

181

Admin. Rec. at 473-477.

182

Admin. Rec. at 463.

183

Id.

184

Admin. Rec. at 464-465.

185

Admin. Rec. at 686-688.
— 35 —

On December 8, 2003, plaintiff presented for droop on the right side of her face.186 Dr.
Tiffany Brian diagnosed nerve palsy to last three or four weeks, and provided requested sleeping
pills.187
Dr. Denise Belisle examined plaintiff, who suffered dysfunctional uterine bleeding on
December 5, 2003.188 An examination was performed two days later on the 7th.189 On March 3,
2004, she was admitted to Chandler Regional Hospital for a total abdominal hysterectomy.190
The surgery was successfully performed on March 4, and during recovery her abdomen was
noted to be normal except for pneumonia.191 She was discharged after recovering well on March
14, 2004.192
Plaintiff presented to the emergency room on December 13, 2004 with back pain.193 She
reported a fall and was diagnosed with low back strain and discharged with a prescription for
Percocet.194

186

Admin. Rec. at 231.

187

Admin. Rec. at 231-232.

188

Admin. Rec. at 235.

189

Admin. Rec. at 239-240.

190

Admin. Rec. at 247-249, 259.

191

Admin. Rec. at 260-279.

192

Admin. Rec. at 248-249.

193

Admin. Rec. at 223.

194

Admin. Rec. at 224.
— 36 —

Dr. Martin Lehaman examined plaintiff’s spine and lumbar for pain but found minimal issues
on December 15, 2004.195
A sleep study was performed on plaintiff on February 22, 2005, during which she performed
moderate respiratory events and snoring were observed.196 A CPAP device was recommended.197
On June 2, 2005, Michele Shackelford examined plaintiff, who expressed knee pain and
popping. No other mental or physical symptoms were apparent, and plaintiff was discharged
with a prescription for Vicodin.198
A September 18, 2005 referral by Dr. Hilts to TMC Advanced Imaging was inconclusive.199
Lab work for plaintiff’s diabetes was run on June 17, 2005, July 12, 2005, and September 2,
2005.200 Further lab tests for plaintiff’s diabetic condition and thyroid was performed on May 2,
2006, June 6 and 14 of 2006, August 1, 2006, October 12 and 17 of 2006, and November 14,
2006.201 A negative thyroid scan was recorded on January 25, 2007.202
Dr. Michael O’Meara evaluated plaintiff for chest pain on September 9, 2005, and found no
angina after an adenosine injection.203

195

Admin. Rec. at 221.

196

Admin. Rec. at 318.

197

Admin. Rec. at 320-322.

198

Admin. Rec. at 195-200.

199

Admin. Rec. at 685.

200

Admin. Rec. at 746-759.

201

Admin. Rec. at 735-745.

202

Admin. Rec. at 760.

203

Admin. Rec. at 287-289.
— 37 —

Dr. Olga M. Kalinking examined an MRI of plaintiff’s lumbar spine on September 28, 2005
and found some mild degenerative changes without other abnormal enhancement.204
Plaintiff presented at an emergency room at Chandler Regional Hospital for knee pain on June
30, 2006.205
Plaintiff presented at the emergency room on July 5, 2006 for chest pain. Plaintiff’s weight
was about 350 pounds, and Dr. Jason Daniels diagnosed a probable gastrointestinal issue and
discharged her.206
On July 25, 2006, plaintiff was seen by Dr. Edward Urbank for Dr. Hilts for abdominal pain,
whereupon liver enlargement with evidence of fatty infiltration was noted.207
Dr. William Lester, for Dr. Hilts, performed an X-ray of plaintiff’s left knee on October 23,
2006, and noted mild osteoarthritic narrowing and a suprapatellar effusion.208
An Arizona DDS medical source statement of mental impairments dated August 29, 2006
diagnoses plaintiff with major depressive disorder, mild to moderate.209 Plaintiff was not
significantly limited in remembering work procedures and simple instructions, and moderately
limited in understanding detailed instructions.210 Plaintiff’s work capacity in carrying out simple
instructions, performing withing a schedule, sustaining an ordinary routine, working in
204

Admin. Rec. at 315-316.

205

Admin. Rec. at 201-207.

206

Admin. Rec. at 210-214.

207

Admin. Rec. at 762.

208

Admin. Rec. at 761.

209

Admin. Rec. at 371.

210

Admin. Rec. at 370-371.
— 38 —

coordination with others, making simple decisions, and working at a consistent pace was not
significantly limited; but she was moderately limited in her ability to concentrate for extended
periods and carry out detailed instructions.211 Plaintiff was not significantly limited in any social
interactions or make work-related adaptations.212 An intellectual quotient examination yielded
results showing borderline intellectual functioning, but Dr. Huddleston questioned these results
in his analysis and opined that plaintiff’s Verbal IQ score of 81, indicating low-average
functioning, was more likely an accurate reflection of plaintiff’s true levels.213 For this reason,
plaintiff, did not suffer from mental impairments other than mild/moderate depressive disorder,
and her prognosis for returning to successful work was good.214
Dr. Neil McPhee examined plaintiff’s complaints of carpal tunnel syndrome, leg pain,
diabetes, sleep apnea, heart problems, and morbid obesity on August 30, 2006.215 She was found
to be morbidly obese with provocative tests for carpal tunnel, leg pain, smokers’ cough, poorly
controlled diabetes, sleep apnea controlled by CPAP, and high cholesterol.216 Weight loss and
improved diabetic control were highly recommended, and the doctor assessed the following
limitations: lifting 50 pounds occasionally and 25 pounds frequently; walking six to eight hours
per day; unlimited sitting, seeing, hearing, and speaking, reaching; occasional climbing,

211

Admin. Rec. at 372-374.

212

Admin. Rec. at 374-376.

213

Admin. Rec. at 381.

214

Admin. Rec. at 382.

215

Admin. Rec. at 384-386.

216

Admin. Rec. at 385-386.
— 39 —

kneeling, crouching, crawling and frequent stooping; occasional handling, avoiding machinery
and heights, without limitations to extreme temperatures, chemicals, dust/fumes, or noise.217
A September 7, 2006 psychiatric review form completed by the Arizona DDS found
insufficient evidence of a mental disability.218
A mental residual functional capacity assessment analyzing the time between May 15, 2005
and September 7, 2006 found plaintiff was only moderately limited in her ability to remember
and understand detailed instructions, carry out detailed instructions, and maintain attention and
concentration for extended periods; there was no evidence of other impairment.219
A physical residual functional capacity assessment completed by Dr. Fahlberg on September
22, 2006 found plaintiff’s impairments consistent with Dr. McPhee’s August 30, 2006
assessment.220
Dr. Thompson examined plaintiff on January 23, 2007 for reported pain over the whole body,
24 hours per day.221 Plaintiff was prescribed pain medication and found to be able to ambulate,
dress, and bathe by herself.222
A neurology consultation with DDS examiner Dr. Halloum on March 27, 2007 showed mild
distress from morbid obesity, diabetes, diabetic neuropathy, carpal tunnel, cholesterol, sleep

217

Admin. Rec. at 386.

218

Admin. Rec. at 389-414.

219

Admin. Rec. at 415-418.

220

Admin. Rec. at 419-425.

221

Admin. Rec. at 583-585.

222

Admin. Rec. at 585.
— 40 —

apnea, angina, and knee pain (a diagnosis for depression was entered but crossed out).223 She
was limited in standing due to diabetic neuropathy, her lifting was restricted to 15 pounds (50
had been crossed out), and had no limitations on sitting indicated.224 A consultative finding of
plaintiff’s physical limitations dated May 13, 2007 by Dr. Jihad Halloum limited plaintiff to
occasional climbing, stooping, kneeling, crouching, and crawling and no extreme temperature.225
Dr. David Young performed a psychological evaluation on plaintiff at the request of Arizona
DDS on April 29, 2007.226 Plaintiff scored 27 out of 30 on the Mini Mental Status exam, was
oriented x3, had good immediate memory but had marked difficulty recalling words after delay,
had difficulty counting backwards by 7 but spelled “world” backwards correctly, and had intact
language skills but difficulty repeating a phrase.227 She reported difficulty concentrating and
frustration. Insight and judgment were considered to be fair. Plaintiff reported waking early to
prepare her son for school, watching TV or going to appointments, visiting her son, and going to
sleep between 1 and 3 a.m.228 Plaintiff received visits from friends, shopped for groceries, and
did not drive.229

223

Admin. Rec. at 441-442.

224

Admin. Rec. at 443-444.

225

Admin. Rec. at 442-445.

226

Admin. Rec. at 426-430.

227

Admin. Rec. at 428.

228

Admin. Rec. at 430.

229

Id.
— 41 —

A physical residual functional capacity assessment and medical analysis completed by Dr.
Ronald Nathan dated May 17, 2007 diagnosed plaintiff with DM (diabetes), obesity, peripheral
neuropathy and sleep apnea.230 The doctor assessed plaintiff with the following capacity
limitations: occasionally lifting/carrying 20 pounds, frequently 10 pounds; stand/walk at least 2
hours in an 8 hour workday, sit for a total of 6 hours in an 8 hour work day. The doctor
indicated that plaintiff’s reported limitations were “partially credible at best,” and that these
limitations indicated the doctor’s own medical opinion as to the medically determinable
limitations.231 Postural limitations included occasional limitations on climbing ramps/stairs,
stooping, kneeling, crouching and crawling; and environmental limitations included avoiding
concentrated exposure to extreme cold, heat, vibrations, fumes, and gasses.232
Plaintiff was treated in urgent care for an infection on September 19, 2007.233
A November 30, 2007 evaluation of the plaintiff’s arms showed mild demyelinating
mononeuropathy (impaired sensation caused by diabetes)234 on the left arm, with no evidence of
bilateral carpal tunnel syndrome.235
Glucose screenings were performed on January 23, 2007, March 19, 2007, May 4, 2007, June
6, 2007, August 8, 2007, August 22, 2007, September 19, 2007, October 26, 2007, December 19,

230

Admin. Rec. at 446-454.

231

Admin. Rec. at 447.

232

Admin. Rec. at 448-450.

233

Admin. Rec. at 512-521.

234

Dorland’s Medical Dictionary (28th Ed.).

235

Admin. Rec. at 478.
— 42 —

2007, March 19, 2008, March 26, 2008, and April 17, 2008.236 Further laboratory tests were
performed on November 20, 2007.237
3. Additional Medical Records
All of the following medical evidence in the Administrative Record was not before the ALJ at
the time of the decision. It was submitted to the Appeals Council in a request for review. The
review was denied, and plaintiff does not challenge this ruling on appeal. Thus, the following
evidence is only important if it would significantly alter the decision and plaintiff can offer a
reason for not including it in the prior appeal (no such reason has been offered).238
A behavioral health and medical history form completed by Harry Battran on August 6, 2008
identified treatment to that date. Plaintiff was prescribed Lyric, Foreman, Gabapin, Zlopin,
Prozac, and Insulin, for her legs, diabetes, and depression.239 Plaintiff reported suffering from the
following ailments all the time: severe dry mouth, cough, shortness of breath, swelling in legs,
ankles, feet, diarrhea/constipation, abdominal pain, joint and back pain, headaches, inappropriate
bowel elimination, and unusual sweats or chills..240 She also reported getting less sleep, gaining
weight, and sometimes experiencing sore throat, dizziness, and nausea/vomiting.241 She reported

236

Admin. Rec. at 725-734, 720-723.

237

Admin. Rec. at 725-726.

238

See Booz v. Secretary of Health & Human Servs., 734 F.2d 1378, 1380 (9th Cir. 1984);
see also 42 U.S.C. § 405(g).
239

Admin. Rec. at 767-787.

240

Admin. Rec. at 770-771.

241

Id.
— 43 —

smoking one pack per day, and said that Prozac helped the most with depression.242 She reported
hiding her symptoms of depression and anxiety since 1984.243 Due to her anger and agitation,
plaintiff was given a good prognosis provided she took medications as prescribed and engaged in
anger management group therapy.244 She described working until 2003 when her medical issues
caused her to resign, although said that many had started in 1994. She was proud of her work
history and reported not being able to comprehend instructions, and reported not being able to
work at that time.245
A neurological evaluation of plaintiff’s hands and feet was done at the request of Dr. Hilts on
December 11, 2008.246 She reported hospitalization in September of 2008 for disorientation and
slurring of words, but without any clinically determined medical causes or recurrence of
symptoms.247 She presented good mental status, and her neurological examination was
unchanged; Dr. George Wang planned to obtain hospital records for further study.248
On November 5, 2008, Dr. George Wang examined plaintiff at the request of Dr. Hilts for
complaints of pain on hands and feet.249 She reported that Neurontin and Lyrica assisted with

242

Admin. Rec. at 771.

243

Admin. Rec. at 772.

244

Admin. Rec. at 779.

245

Admin. Rec. at 786.

246

Admin. Rec. at 788-789.

247

Admin. Rec. at 788.

248

Admin. Rec. at 789.

249

Admin. Rec. at 791-793.
— 44 —

pain relief, including that she “ran out” of Lyrica and noticed worsened pain; she also reported
hospitalization for a stroke but no stroke was recorded in the medical history.250 Test results
showed mild lumbrosacral radiculopathy on the L5 and S1 levels and no evidence of carpal
tunnel syndrome.251
An August 27, 2008 consultation by Dr. Wang at the request of Dr. Hilts assessed bilateral
carpal tunnel syndrome, headaches, back issues, and possible risk of stroke, and prescribed
Lyrica and Neurontin.252
On July 8, 2008, Dr. George Wang examined plaintiff at the request of Dr. Hilts for
complaints of hand and foot pain. A prescription of Lyrica was started, along with Neurontin and
Percocet, as well as physical therapy.253 Plaintiff reported being unable to hold anything or write,
as well as having increasing difficulty walking.254 Plaintiff reported uncontrolled pain at the
maximum dosage of Neurontin, and was explained the importance of controlling her diabetes.255
A psychological evaluation by Dr. Wayne General, dated October 30, 2008 was performed for
the Arizona Department of Economic Security and Disability Determination Service
Administration.256 Plaintiff reported a shortened attention span, difficulty writing from carpal

250

Admin. Rec. at 791.

251

Admin. Rec. at 792-793.

252

Admin. Rec. at 794-796.

253

Admin. Rec. at 797.

254

Id.

255

Admin. Rec. at 798-799.

256

Admin. Rec. at 802-807.
— 45 —

tunnel syndrome and neuropathy from diabetes, leg pain, fear of others, and depression.257 She
reported low self-esteem and lack of motivation to leave her room, and performing few or no
domestic chores.258 She reported spending her free time watching television and sleeping.259 On
her questionnaire, plaintiff reported sleeping problems, low energy, mood swings, crying,
inability to concentrate, headaches, dizziness, palpitations, feeling tense and panicky, depression,
suicidal ideals, inability to relax or have a good time, feeling lonely, inability to make decisions,
keep a job, and visual problems and voices.260 A review of her MRIs showed no brain
abnormalities.261 Examinations revealed cooperation, 3x orientation, good abstracting ability and
judgment, intact short- and long-term memory.262 Concentration was beneath normal limits.263
Plaintiff denied suicidal idealization within the prior two years, but claimed symptoms of
dissociative identity disorder, and her IQ was estimated to be average or low average.264 Dr.
General ultimately diagnosed dysthymic disorder, panic disorder with agoraphobia, breathingrelated sleep disorder, victim of abuse as a child, self-reported reading disorder, self-reported and
observed mathematics disorder, self-reported disorder of written expression; as well as carpal

257

Admin. Rec. at 802.

258

Admin. Rec. at 802-804.

259

Admin. Rec. at 804.

260

Id.

261

Admin. Rec. at 805.

262

Admin. Rec. at 805-806.

263

Admin. Rec. at 806.

264

Id.
— 46 —

tunnel syndrome, diabetes, neuropathy in legs and arm, asthma, arthritis in knees, walking,
climbing, and writing problems, and obesity.265 She was opined to be capable of managing her
own payments, but her prognosis for returning to work was poor, as her ability to perform workrelated tasks was estimated below-average in attention span, concentration, and short-term
memory.266 She had not worked since 2003, when she resigned from work for menstrual
irregularities which are unlikely to recur. She had adequate interpersonal skills.267
4. Function Reports
Plaintiff’s self-reported medical history, completed on June 29, 2005, denied asthma or
arthritis, and admitted depression and diabetes.268
Plaintiff completed a self-reported functionality report dated July 17, 2006.269 She reported
needing assistance to get out of bed and reach for her walker in the morning.270 Her daughter
cooked breakfast and helped her son get to school.271 She reported that her disability prevented
her from working and normal function and affected her sleep patterns.272 Plaintiff could no

265

Admin. Rec. at 807.

266

Id.

267

Id.

268

Admin. Rec. at 715.

269

Admin. Rec. at 123-132.

270

Admin. Rec. at 123.

271

Admin. Rec. at 123-124.

272

Admin. Rec. at 124.
— 47 —

longer cook, do chores, yardwork, go out alone, or drive (side effect from medications).273
Plaintiff reported that she could not hold a job due to medications and constant pain.274 She
would watch television daily and talk with her family, although medication made her irritable
and agitated, and pain minimized her social life.275 Plaintiff reported that her limitations affected
almost all job skills and made her depressed and unable to function.276 She attributed her leg
pain to a secondary infection after her hysterectomy, which is when she left her previous job.277
Destini Scadden, plaintiff’s daughter, completed a third party function report on July 18,
2006.278 She described needing take care of her brother for plaintiff.279 Plaintiff’s daily activities
were taking medication, eating breakfast, attending doctor appointments, and watching
television; her disability interfered with everyday tasks and work.280 Plaintiff needed assistance
dressing and grooming, and could not cook or do chores.281 Plaintiff watches television or
movies every day, but needed to adjust her legs and reposition every hour; talked with family,
attended doctor’s appointments, and would get frustrated easily.282 Pain affected her ability to
273

Admin. Rec. at 125-126.

274

Admin. Rec. at 126.

275

Admin. Rec. at 127-128.

276

Admin. Rec. at 128-129.

277

Admin. Rec. at 130.

278

Admin. Rec. at 133-140.

279

Admin. Rec. at 134.

280

Admin. Rec. at 133-134.

281

Admin. Rec. at 134-136.

282

Admin. Rec. at 137-139.
— 48 —

pay attention, but she could understand everything sometimes and get along “just fine” with
authority figures.283

283

Admin. Rec. at 138-139.
— 49 —