Koriel v. Colvin

Filing 34

ORDER, the Commissioner's decision denying benefits is reversed and this matter is remanded for an award of benefits; the Clerk shall enter judgment accordingly and terminate this case. Signed by Magistrate Judge Bridget S Bade on 2/19/15. (REW)

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1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Mary E. Koriel, No. CV-13-01531-PHX-BSB Plaintiff, 10 11 v. 12 ORDER Carolyn W. Colvin, 13 Defendant. 14 15 Mary E. Koriel (Plaintiff) seeks judicial review of the final decision of the 16 Commissioner of Social Security (the Commissioner) denying her application for benefits 17 under the Social Security Act (the Act). The parties have consented to proceed before a 18 United States Magistrate Judge pursuant to 28 U.S.C. § 636(b), and have filed briefs in 19 accordance with Local Rule of Civil Procedure 16.1. 20 Court reverses the Commissioner’s decision and remands for benefits. 21 I. For the following reasons, the Procedural Background 22 On August 26, 2009, Plaintiff applied for supplemental security income under 23 Title XVI of the Act. (Tr. 231-39.)1 Plaintiff alleged that she had been disabled since 24 January 1, 2003. (Id.) Plaintiff later amended her disability onset date to August 14, 25 2009. (Tr. 25.) After the Social Security Administration (SSA) denied Plaintiff’s initial 26 application and her request for reconsideration, she requested a hearing before an 27 28 1 (Doc. 19.) Citations to “Tr.” are to the certified administrative transcript of record. 1 administrative law judge (ALJ). After conducting a hearing, the ALJ issued a decision 2 finding Plaintiff not disabled under the Act. (Tr. 25-34.) This decision became the final 3 decision of the Commissioner when the Social Security Administration Appeals Council 4 denied Plaintiff’s request for review. (Tr. 1-6); see 20 C.F.R. § 404.981 (explaining the 5 effect of a disposition by the Appeals Council). Plaintiff now seeks judicial review of 6 this decision pursuant to 42 U.S.C. § 405(g). 7 II. 8 9 Medical Record The record before the Court establishes the following history of diagnosis and treatment related to Plaintiff’s health. The record also includes a lay opinion and 10 opinions from state agency physicians who examined Plaintiff or reviewed the records 11 related to her health, but who did not provide treatment. 12 13 A. Medical Treatment 1. Lauren Bonner, M.D. 14 On June 9, 2004, Plaintiff sought treatment from Dr. Bonner for symptoms of 15 psychological disturbance. (Tr. 390-91.) Plaintiff reported that she was attending a drug 16 diversion program and was taking prescribed medications secondary to intrusive 17 memories of a rape. (Id.) Dr. Bonner assessed major depressive disorder, posttraumatic 18 stress disorder (PTSD), opiate dependence in full remission, and somatization disorder. 19 (Id.) Dr. Bonner assessed a Global Assessment of Functioning (GAF) score of 50. (Id.) 20 Later that same month, Dr. Bonner assessed a GAF score of 47-48. (Tr. 384.) 21 On February 18, 2004, Plaintiff reported that she was afraid to attend counseling 22 related to the drug diversion treatment because she had difficulty discussing her feelings 23 with strangers. 24 exhibited passive behavior and symptoms of anxiety, depression, helplessness, and low 25 self-esteem. (Tr. 379.) Plaintiff reported that she was paranoid, depressed, and had 26 trouble sleeping. 27 medication was “poor” because she had taken more than the recommended dose of 28 Klonipin. (Id.) (Tr. 381.) On February 27, 2004, Dr. Bonner noted that Plaintiff (Tr. 377.) Dr. Bonner noted that Plaintiff’s compliance with -2- 1 On April 12, 2004, Dr. Bonner noted that Plaintiff’s condition was not improving 2 with medication. (Tr. 375-76.) On April 29, 2004, Plaintiff was tearful, irritable, and 3 dysphoric. (Tr. 369-70.) Plaintiff wanted to change anti-depressant medication to try to 4 reduce her symptoms. (Id.) Dr. Bonner continued to treat Plaintiff throughout 2004 for 5 depression and PTSD, and a possible eating disorder. (Tr. 354-68.) She noted that 6 Plaintiff often presented in a dysphoric mood, sometimes missed appointments, refused 7 counseling except for a women’s group, and self-adjusted her medication. (Id.) 2. 8 NOVA 9 In July 2005, a nurse practitioner (NP) at NOVA examined Plaintiff and 10 confirmed a history of anxiety, panic, anger, decreased concentration, and suicidal 11 ideation. 12 Plaintiff presented with an agitated labile affect, and was anxious and depressed. (Id.) 13 She exhibited occasional loose associations, circumstantial speech, and a sense of 14 diminished worth. (Id.) The NP opined that Plaintiff had bipolar disorder and possible 15 negative effects from prescribed medications. (Tr. 409-10.) (Tr. 406-08.) Plaintiff reported auditory and visual hallucinations. (Id.) 16 On October 3, 2005, Plaintiff reported daily headaches, an inability to concentrate, 17 tearfulness, and a flat, anxious, and agitated affect. (Tr. 401-02.) The NP diagnosed 18 Plaintiff with bipolar disorder and schizoaffective disorder. (Id.) 19 3. John Koryakos, M.D. 20 In 2004, Plaintiff began treatment with Dr. Koryakos for physical and 21 psychological issues. (Tr. 493-94.) On June 24, 2004, Dr. Koryakos noted that Plaintiff 22 had chronic pelvic pain, depression, insomnia, headaches, chronic lower back and hip 23 pain, and gastrointestinal upset. (Id.) Dr. Koryakos continued to treat Plaintiff for these 24 issues, and also noted insomnia and a possible eating disorder. (Tr. 476-92.) 25 In September 2005, Dr. Koryakos saw Plaintiff for a medication refill. (Tr. 473.) 26 Plaintiff reported pain and numbness in her fingers of both hands, and tenderness in her 27 lumbar paraspinal muscles. (Tr. 473.) On October 26, 2005, Dr. Koryakos noted that 28 Plaintiff continued to experience insomnia, headaches, and side effects from her -3- 1 medications. (Tr. 474.) From November 2005 through January 2006, Dr. Koryakos 2 found that Plaintiff also had ongoing pelvic pain, and gastroesophagel reflux disease 3 (GERD) symptoms. (Tr. 471-72.) 4 In 2006, Dr. Koryakos continued treating Plaintiff for back and neck pain, body 5 pain, joint pain, hip pain, and knee pain. (Tr. 469.) Plaintiff reported tingling and 6 numbness in her left leg and the tips of her fingers. (Id.) An MRI of Plaintiff’s cervical 7 spine on April 5, 2006 showed “mild left neural foraminal narrowing at C5-6 secondary 8 to degenerative disc disease and mild facet arthropathy.” (Tr. 509-10.) Throughout 9 2006, Dr. Koryakos treated Plaintiff for pelvic and body pain, numbness and tingling in 10 her left arm, insomnia, anxiety, and pain in her shoulders. (Tr. 459-68.) 11 On April 16, 2008, Dr. Koryakos treated Plaintiff for increased low back pain after 12 a fall. (Tr. 453.) On May 9, 2008, Plaintiff reported diffuse pain in all of her joints. 13 (Tr. 452.) She had positive trigger points in her thoracic and lumbar spine, and fatigue. 14 (Id.) Dr. Koryakos “suspect[ed]” fibromyalgia. (Id.) On June 24, 2008, Dr. Koryakos 15 noted that Plaintiff had stomach upset and heart palpitations from Neurontin, and noted 16 that Neurontin was not controlling Plaintiff’s pain. (Tr. 449.) Plaintiff continued to 17 report chronic body and joint pain. (Id.) Dr. Koryakos assessed arthralgia, myalgias, and 18 “F.M.” (fibromyalgia). (Id.) 19 Laboratory tests on October 9 and November 2008 showed that Plaintiff had low 20 red blood cell counts, low hemoglobin, and low hematocrit. (Tr. 498-500.) On 21 November 19, 2008, Dr. Koryakos noted that Plaintiff experienced pain in her arms and 22 legs, headaches, bloating, positive trigger point tenderness, and bulimia. (Tr. 448.) 23 On March 6, 2009, Dr. Koryakos treated Plaintiff for a headache that had been 24 present for two weeks and was not responding to Imitrex. (Tr. 447.) Dr. Koryakos 25 treated Plaintiff for headaches and body pain on April 2, May 6, and May 18, 2009. 26 (Tr. 444-46.) 27 28 -4- 1 In 2008 and 2009, Dr. Koryakos treated Plaintiff for headaches, fibromyalgia, 2 bloating, abdominal pain, low iron levels, dizziness, medication side effects, upper back 3 pain, GERD, and fatigue. (Tr. 517-45.) 4 In 2009, Dr. Koryakos continued treating Plaintiff for body pain, GERD, 5 dizziness, balance problems, and fibromyalgia. He also noted that Plaintiff had lost her 6 insurance and was having difficulty affording medication. (Tr. 713-26.) 7 8 In 2010 and 2011, Dr. Koryakos continued treating Plaintiff for fibromyalgia pain, joint pain, pelvic pain, abdominal pain, and GERD. (Tr. 882-903.) 4. 9 Michael Steingart, M.D. 10 On June 5, 2006, orthopedic surgeon Dr. Steingart examined Plaintiff and noted 11 that she had whole body pain, laxity in her left shoulder, and positive Tinel’s and 12 Phalen’s signs in her left wrist. (Tr. 789-90.) An MRI of Plaintiff’s cervical spine on 13 July 17, 2006 showed a mild disc bulge and posterior spondylytic changes at C4-5, C5-6, 14 and C6-7. (Tr. 792.) The MRI also showed mild multilevel degenerative disc disease 15 and loss of normal cervical lordosis with reversal of curvature centered at C5. (Id.) 16 Dr. Steingart continued treating Plaintiff for left shoulder and neck pain, noting that he 17 suspected a glenolabral tear in the left shoulder. (Tr. 786-87.) He noted that Plaintiff had 18 anxiety disorder which prevented “invasive testing.” (Tr. 786.) Dr. Steingart prescribed 19 Valium for Plaintiff to allow him to perform diagnostic tests. (Id.) A July 21, 2006 EMG 20 of Plaintiff’s upper extremities revealed mild right median neuropathy at the wrist. 21 (Tr. 795-96.) On December 21, 2006, Dr. Steingart treated Plaintiff for bilateral wrist 22 and left shoulder pain. (Tr. 784.) 23 An arthrogram of Plaintiff’s left shoulder on March 29, 2007 was essentially 24 normal. (Tr. 798-99.) An MRI that same day showed mild left acromioclavicular (AC) 25 arthorsis. 26 physical therapy for her shoulder. (Tr. 780-81.) She had positive impingement signs and 27 trouble lifting her left arm upwards. (Id.) (Tr. 791.) On April 20, 2007, Dr. Steingart opined that Plaintiff needed 28 -5- 1 5. Pattabi Kalyanam, M.D. 2 On referral from Dr. Koryakos, on June 5, 2007, Plaintiff saw neurologist 3 Dr. Kalyanam at the Arizona Pain Center. (Tr. 419.) Plaintiff reported left neck pain, 4 left arm pain, low back pain, and episodes of numbness and tingling. (Id.) On review of 5 an MRI, Dr. Kalyanam found evidence of mild left neurforaminal narrowing of Plaintiff’s 6 cervical spine, and mild facet arthropathy. (Tr. 421.) Dr. Kalyanam noted that Plaintiff 7 had a diminished range of motion in her left arm due to pain, and diminished muscle 8 strength and tone, and diminished deep tendon reflexes in her left arm and right leg. 9 (Tr. 420.) Plaintiff had a “positive” facet joint examination bilaterally at L3, L4, L5, and 10 S1. (Id.) “SI joint tenderness [was] positive bilaterally,” and trigger points were positive 11 over both trapezium muscles and the upper and lower back. (Id.) Plaintiff’s hand grip 12 was diminished on the left. (Id.) Plaintiff’s left arm was positive for allodynia. (Id.) 13 Dr. Kalyanam opined that Plaintiff had cervical radiculopathy, left arm acromioclavicular 14 arthritis, lumbar radiculopathy, and possible carpal tunnel syndrome in her left arm, and 15 depression. (Tr. 420.) Dr. Kalyanam scheduled Plaintiff for cervical epidural steroid 16 injections and bilateral trapezius muscle trigger point injections. (Id.) 17 6. New Arizona Family Clinic 18 From August 2008 through October 2009, Plaintiff obtained mental health 19 treatment from providers at the New Arizona Family Clinic (Family Clinic) for suicidal 20 ideation, anxiety, history of sexual abuse, depression, psychosis, substance abuse, and 21 attention deficit hyperactivity disorder (ADHD). (Tr. 549-672.) Treatment providers 22 frequently changed Plaintiff’s medications due to side effects or ineffectiveness. (Id.) 23 Plaintiff reported constant suicidal ideation, decreased concentration, crying spells, and 24 auditory hallucination. 25 activities of daily living. (Tr. 549-672.) On October 14, 2009 NP Nancy Mullins noted 26 that Plaintiff appeared startled and was rocking back and forth in her chair. (Tr. 660.) 27 Treatment notes indicate that Plaintiff continued to present with depression throughout (Id.) She reported that she could only complete minimal 28 -6- 1 2009 and into 2010, at which point her health insurance was cancelled due to her inability 2 to work. (Tr. 699-702.) 3 Plaintiff continued to receive treatment for anxiety and depression at the Family 4 Clinic from 2010 through May 26, 2011. (Tr. 805-11.) Treatment providers noted that 5 Plaintiff was tearful, had suicidal ideation, was irritable, and had no joy in her activities. 6 (Id.) 7. 7 Hospitalization 8 From July 21, 2011 through August 4, 2011, Plaintiff was hospitalized for suicide 9 ideation and mental health treatment. (Tr. 912-21.) At the time of admission, Plaintiff 10 had symptoms of depression, poor hygiene, and was in moderate distress. (Id.) She had 11 a GAF score of 45. (Tr. 920.) On discharge, Plaintiff described her mood as “good,” she 12 was goal oriented, had “good concentrating ability,” denied anxiety, hallucinations, and 13 delusions. (Id.) She had no suicidal ideations and had fair insight and judgment. (Id.) 14 Dr. Sandra McDonald identified Plaintiff’s diagnoses as major depressive disorder, 15 obsessive compulsive disorder (OCD), and borderline personality traits, and assessed a 16 GAF score of 55-60. (Tr. 909.) 17 18 19 B. Medical and Lay Opinion Evidence 1. Dr. Koryakos On July 15, 2009, Dr. Koryakos completed a Medical Assessment of Ability to do 20 Work-Related Physical Activities. (Tr. 515.) He opined that Plaintiff could sit, stand, 21 and walk for two hours each in an eight-hour work day, and that she could lift less than 22 ten pounds. (Id.) He identified Plaintiff’s diagnoses as chronic back and body pain, 23 fibromyalgia, headaches, attention deficit disorder (ADD), anxiety, and depression. (Id.) 24 On December 10, 2009, Dr. Koryakos completed another assessment of work- 25 related physical activities. (Tr. 696.) He opined that Plaintiff had limitations consistent 26 with those he identified on July 15, 2009. 27 (Compare Tr. 515-16 with Tr. 696-97.) In June 2011, Dr. Koryakos completed another assessment of work-related 28 -7- 1 physical activities. (Tr. 326.) He opined that Plaintiff had limitations consistent with 2 those he identified in 2009. (Compare Tr. 515-16 and Tr. 696-97 with Tr. 326-27.) 2. 3 John Prieve, D.O. 4 On March 13, 2010, state agency physician Dr. Prieve examined Plaintiff for her 5 application for benefits. (Tr. 728.) He noted that Plaintiff had a history of chronic pain, 6 depression, and anxiety, and that she needed to change positions frequently. (Tr. 728.) 7 He noted Plaintiff’s report that she dropped things due to wrist pain. (Id.) Dr. Prieve 8 noted that Plaintiff had a flat affect. (Tr. 729.) He found diffuse tenderness in her spine, 9 a decreased range of motion in the cervical spine, lumbar spine, and hips. (Tr. 730.) She 10 had a positive response to sixteen of eighteen fibromyalgia trigger points, and positive 11 Tinel’s and Phalen’s tests in her left wrist. (Tr. 731.) Dr. Prieve diagnosed fibromyalgia, 12 left carpal tunnel syndrome, depression, and anxiety. 13 could stand or walk at least two hours, but less than six hours, in an eight-hour day (four 14 hours intermittently). (Id.) He also found that Plaintiff could sit for at least two, but less 15 than six hours a day (four to six intermittently), and lift up to ten pounds occasionally and 16 frequently. (Tr. 731-32.) He opined that Plaintiff could occasionally climb, stoop, kneel, 17 and crouch, handle, finger and feel with her left hand. (Id.) 3. 18 (Id.) He opined that Plaintiff Greg Peetoom, Ph.D. On March 22, 2010, Dr. Peetoom examined Plaintiff as part of her application for 19 20 benefits. (Tr. 734.) 21 concentrating, and ADHD. (Id.) He also noted that Plaintiff had panic attacks, had 22 attempted suicide several times, and had been hospitalized for psychiatric treatment 23 twice. 24 complete the serial seven’s test accurately, missed items during recall testing, and 25 misunderstood test instructions. (Id.) She appeared drowsy and lethargic and needed 26 instructions repeated. (Tr. 736.) (Id.) He noted Plaintiff’s history of depression, anxiety, difficulty On examination, Plaintiff incorrectly identified the season, could not 27 Dr. Peetoom noted that Plaintiff’s diagnoses included dysthymic disorder, 28 generalized anxiety disorder, and ADHD with opioid dependency. (Id.) He opined that -8- 1 Plaintiff had some limitations in her immediate memory, concentration, and attention. 2 (Tr. 737.) He opined that Plaintiff could understand and remember simple work-related 3 instructions and procedures, complete simple tasks, and interact appropriately with 4 supervisors and co-workers. 5 difficulty with more complex tasks and working consistently with the general public. 6 (Id.) 4. 7 (Tr. 738.) He also opined that Plaintiff would have Jean Goerss, M.D. 8 During the administrative proceedings, state agency physician Jean Goerss, M.D., 9 reviewed the record and opined that Plaintiff retained abilities consistent with light work, 10 including the ability to stand and walk for at least six hours in an eight-hour workday sit 11 for about six hours in an eight-hour workday, and lift and carry twenty pounds 12 occasionally and ten pounds frequently. (Tr. 763-70.) 5. 13 Linda Jidou 14 For Plaintiff’s application for benefits, Plaintiff’s sister, Linda Jidou, submitted a 15 Function Report describing Plaintiff’s limitations. (Tr. 328.) She stated that Plaintiff 16 needed encouragement to get up and get dressed. (Id.) She described Plaintiff as being 17 in constant pain, forgetful, and extremely fatigued. (Id.) Jidou indicated that Plaintiff 18 preferred to be alone, had trouble sleeping, needed help with basic hygiene, and needed 19 reminders to eat and shower. (Tr. 329-330.) She also noted that Plaintiff was sometimes 20 too anxious to leave the house and was not motivated to perform household chores. 21 (Tr. 331.) 22 walking, sitting, remembering, completing tasks, following instructions, and getting 23 along with others. (Tr. 333.) She indicated that Plaintiff was often depressed, tired, 24 confused, anxious, and in a lot of pain. (Id.) 25 III. Jidou also noted that Plaintiff had difficulty lifting, standing, reaching, Administrative Hearing Testimony 26 Plaintiff was in her early forties at the time of the administrative hearing and the 27 ALJ’s decision in June 2012. (Tr. 44.) She had an eleventh grade education and past 28 relevant work as a waitress. (Id.) Plaintiff testified that she had panic attacks and -9- 1 sometimes had to pull over when she was driving to wait for the attacks to pass. (Tr. 50.) 2 Plaintiff reported that near the end of her last job she was often absent due to depression 3 and anxiety. (Tr. 51.) She stated that getting out of bed, getting dressed, and trying to 4 talk to people about finding work caused too much anxiety. (Tr. 52.) Plaintiff also 5 testified that she had pain from fibromyalgia, carpal tunnel syndrome, and other 6 impairments. (Tr. 53.) She had radiating pain, migraines, and daily tension headaches. 7 (Id.) 8 depression, and that she preferred to be left alone. (Tr. 58.) She avoided grocery 9 shopping because she felt like others were staring at her or talking about her. (Id.) This 10 feeling had caused her to abruptly leave the store. (Tr. 59.) She also testified that she 11 had carpal tunnel syndrome in her left hand, which caused a tendency to drop things. 12 (Tr. 65.) Plaintiff testified that she had difficulty getting out of bed due to pain and 13 Plaintiff estimated that she could sit for about thirty minutes at a time, and stand or 14 walk for ten minutes at a time. (Tr. 67.) She could lift a gallon of milk with her right 15 hand. (Tr. 68.) Plaintiff was afraid to leave home because of her anxiety. (Tr. 69-71.) 16 She napped throughout the day and was uncomfortable in any position. (Tr. 75-76.) She 17 had trouble concentrating because her mind raced. (Tr. 72.) Plaintiff was afraid to return 18 phone calls, did not socialize, and sometimes did not shower. (Tr. 73.) Plaintiff testified 19 that she did not care if she lived or died. (Tr. 75.) 20 Vocational expert Ms. Tolly testified at the administrative hearing.2 (Tr. 79.) She 21 identified Plaintiff’s past relevant work as a waitress. (Id.) In response to a question 22 from the ALJ, she testified that an individual with the limitations identified by 23 Dr. Koryakos, who could sit or stand for two hours in an eight-hour work day, could not 24 maintain competitive employment. (Tr. 80-81.) 25 The ALJ also asked the vocational expert to consider a person with limitations 26 identified by Dr. Goerss, with a light exertional level, and with the ability to lift ten 27 28 2 The vocational expert’s first name does not appear in the transcript of the administrative hearing. (Tr. 41-103.) - 10 - 1 pounds occasionally and frequently with the left hand, and ten pounds frequently and 2 twenty pounds occasionally with the right hand, occasionally climb ramps and stairs, 3 frequently balance, stoop, kneel, crouch and crawl, unlimited reaching and feeling, 4 unlimited handling and fingering with the right hand and occasional handling and 5 fingering with the left hand, who must avoid concentrated exposure to hazards, and was 6 limited to simple, routine, repetitive task, a low stress position (occasional decision 7 making and changes in the work setting), and occasional contact with the public. (Tr. 81- 8 82.) In response, the vocational expert testified that a person with those limitations could 9 perform the positions of parking lot attendant, photocopy machine operator, and ticket 10 seller. (Tr. 83.) 11 On further questioning, the vocational expert testified that a person with those 12 limitations would not be able to perform the job of ticket seller because of the limitation 13 to occasional public contact. Therefore, the vocational expert substituted the position of 14 night guard for ticket seller, noting that this position was available in reduced numbers. 15 (Tr. 85.) In response to questions from Plaintiff’s attorney, the vocational expert testified 16 that the job of parking lot attendant would require “occasional to frequent” public 17 contact. (Tr. 87-88.) The vocational expert testified that the occupations of night guard 18 and apparel stock checker would be more appropriate; however, the job of apparel stock 19 checker would require “occasional to frequent” handling with the non-dominant hand. 20 (Tr. 88-89.) The vocational expert testified that the position of photocopying machine 21 operator could involve frequent contact with the public depending on the type of 22 business, and testified that the job would be available in reduced numbers for someone 23 who was limited to occasional public contact.3 (Tr. 91-92.) 24 The vocational expert testified that if an individual had to leave work several times 25 a week due to panic attacks, that person would not be able to maintain sustained work. 26 (Tr. 97-98.) She also testified that a person generally could not be absent more than one 27 28 3 (Tr. 91.) When asked, “Okay, you did reduce the numbers,” the Tolly stated, “Yeah.” - 11 - 1 day each month and maintain employment. (Tr. 98-99.) She also testified that a person 2 with moderate impairment in the ability to complete a normal work week without 3 interruptions would be unable to maintain employment. (Tr. 99-100.) 4 IV. The ALJ’s Decision 5 A claimant is considered disabled under the Social Security Act if she is unable 6 “to engage in any substantial gainful activity by reason of any medically determinable 7 physical or mental impairment which can be expected to result in death or which has 8 lasted or can be expected to last for a continuous period of not less than 12 months.” 9 42 U.S.C. § 423(d)(1)(A); see also 42 U.S.C. § 1382c(a)(3)(A) (nearly identical standard 10 for supplemental security income disability insurance benefits). To determine whether a 11 claimant is disabled, the ALJ uses a five-step sequential evaluation process. 12 20 C.F.R. §§ 404.1520, 416.920. See 13 A. Five-Step Evaluation Process 14 In the first two steps, a claimant seeking disability benefits must initially 15 demonstrate (1) that she is not presently engaged in a substantial gainful activity, and 16 (2) that her disability is severe. 20 C.F.R. § 404.1520(a)(4)(i) and (ii). If a claimant 17 meets steps one and two, she may be found disabled in two ways at steps three through 18 five. At step three, she may prove that her impairment or combination of impairments 19 meets or equals an impairment in the Listing of Impairments found in Appendix 1 to 20 Subpart P of 20 C.F.R. pt. 404. 20 C.F.R. § 404.1520(a)(4)(iii). If so, the claimant is 21 presumptively disabled. If not, the ALJ determines the claimant’s residual functional 22 capacity (RFC). 20 C.F.R. § 404.1520(e). At step four, the ALJ determines whether a 23 claimant’s 24 20 C.F.R. § 404.1520(a)(4)(iv). If the claimant establishes this prima facie case, the 25 burden shifts to the government at step five to establish that the claimant can perform 26 other jobs that exist in significant number in the national economy, considering the 27 claimant’s RFC, age, work experience, and education. 20 C.F.R. § 404.1520(a)(4)(v). If RFC precludes performance 28 - 12 - of her past work. 1 the government does not meet this burden, then the claimant is considered disabled 2 within the meaning of the Act. 3 B. 4 Applying the five-step sequential evaluation process, the ALJ found that Plaintiff 5 had not engaged in substantial gainful activity since November 30, 2008, the alleged 6 disability onset date. 7 following severe impairments: “carpal tunnel syndrome, depression and anxiety (20 8 C.F.R. 416.920(c)).” (Id.) At the third step, the ALJ found that the severity of those 9 impairments did not meet or medically equal the criteria of an impairment listed in 20 10 The ALJ’s Application of Five-Step Evaluation Process (Tr. 27.) At step two, the ALJ found that Plaintiff had the C.F.R. Part 404, Subpart P, Appendix 1. (Id.) 11 The ALJ next concluded that Plaintiff retained the RFC “to perform light work as 12 defined in 20 C.F.R.§ 416.967(b) with lifting and carrying [limited] to 10 pounds 13 frequently and 20 pounds occasionally, [and] sitting standing, and walking [limited] to 6 14 hours per 8-hour day.” (Tr. 29.) The ALJ further found that Plaintiff should not climb 15 ladders, ropes, or scaffolds, and that she could occasionally climb ramps or stairs. (Id.) 16 The ALJ found that Plaintiff should not stoop or crawl. (Id.) He found that Plaintiff had 17 “limited” overhead reaching, handling, and fingering with her right upper extremity, and 18 that she could frequently finger and reach with her left upper extremity. (Id.) The ALJ 19 further found that Plaintiff should avoid exposure to hazardous machinery and heights. 20 (Id.) Finally, he found that Plaintiff was limited to “simple, repetitive tasks in a low- 21 stress work environment with no more than occasional changes in the workplace setting 22 and occasional contact with members of the general public.” (Id.) 23 At step four, the ALJ found that Plaintiff could not perform her past relevant work. 24 (Tr. 33.) The ALJ concluded that Plaintiff could perform other work that existed in 25 significant numbers in the national economy including parking lot attendant, photocopier, 26 and ticket salesperson. (Tr. 34.) Accordingly, the ALJ found that Plaintiff was not 27 disabled under the Act. 28 - 13 - 1 V. Standard of Review 2 The district court has the “power to enter, upon the pleadings and transcript of 3 record, a judgment affirming, modifying, or reversing the decision of the Commissioner, 4 with or without remanding the cause for a rehearing.” 42 U.S.C. § 405(g). The district 5 court reviews the Commissioner’s final decision under the substantial evidence standard 6 and must affirm the Commissioner’s decision if it is supported by substantial evidence 7 and it is free from legal error. Ryan v. Comm’r of Soc. Sec. Admin., 528 F.3d 1194, 1198 8 (9th Cir. 2008); Smolen v. Chater, 80 F.3d 1273, 1279 (9th Cir. 1996). Even if the ALJ 9 erred, however, “[a] decision of the ALJ will not be reversed for errors that are 10 harmless.” Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005). 11 Substantial evidence means more than a mere scintilla, but less than a 12 preponderance; it is “such relevant evidence as a reasonable mind might accept as 13 adequate to support a conclusion.” Richardson v. Perales, 402 U.S. 389, 401 (1971) 14 (citations omitted); see also Webb v. Barnhart, 433 F.3d 683, 686 (9th Cir. 2005). In 15 determining whether substantial evidence supports a decision, the court considers the 16 record as a whole and “may not affirm simply by isolating a specific quantum of 17 supporting evidence.” 18 quotation and citation omitted). Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007) (internal 19 The ALJ is responsible for resolving conflicts in testimony, determining 20 credibility, and resolving ambiguities. See Andrews v. Shalala, 53 F.3d 1035, 1039 (9th 21 Cir. 1995). “When the evidence before the ALJ is subject to more than one rational 22 interpretation, [the court] must defer to the ALJ’s conclusion.” Batson v. Comm’r of Soc. 23 Sec. Admin., 359 F.3d 1190, 1198 (9th Cir. 2004) (citing Andrews, 53 F.3d at 1041). 24 VI. Plaintiff’s Claims 25 Plaintiff argues that the ALJ erred by rejecting Dr. Koryakos’s opinions, her 26 symptom testimony, and the lay witness statement. (Doc. 25 at 14-23.) Plaintiff also 27 argues that the ALJ’s step-five determination is not supported by substantial evidence. 28 (Id. at 25.) - 14 - 1 A. Weighing Medical Source Opinions 2 In weighing medical source evidence, the Ninth Circuit distinguishes between 3 three types of physicians: (1) treating physicians, who treat the claimant; (2) examining 4 physicians, who examine but do not treat the claimant; and (3) non-examining physicians, 5 who neither treat nor examine the claimant. Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 6 1995). Generally, more weight is given to a treating physician’s opinion. Id. The ALJ 7 must provide clear and convincing reasons supported by substantial evidence for 8 rejecting a treating or an examining physician’s uncontradicted opinion. Id.; Reddick v. 9 Chater, 157 F.3d 715, 725 (9th Cir. 1998). An ALJ may reject the controverted opinion 10 of a treating or an examining physician by providing specific and legitimate reasons that 11 are supported by substantial evidence in the record. Bayliss v. Barnhart, 427 F.3d 1211, 12 1216 (9th Cir. 2005); Reddick, 157 F.3d at 725. 13 Opinions from non-examining medical sources are entitled to less weight than 14 opinions from treating or examining physicians. Lester, 81 F.3d at 831. Although an 15 ALJ generally gives more weight to an examining physician’s opinion than to a non- 16 examining physician’s opinion, a non-examining physician’s opinion may nonetheless 17 constitute substantial evidence if it is consistent with other independent evidence in the 18 record. Thomas v. Barnhart, 278 F.3d 947, 957 (9th Cir. 2002). 19 medical opinion evidence, the ALJ may consider “the amount of relevant evidence that 20 supports the opinion and the quality of the explanation provided; the consistency of the 21 medical opinion with the record as a whole; [and] the specialty of the physician providing 22 the opinion . . . .” Orn v. Astrue, 495 F.3d 625, 631 (9th Cir. 2007). When evaluating 23 B. Weight Assigned Dr. Koryakos’s Opinions 24 Dr. Koryakos completed three assessments of Plaintiff’s ability to perform work- 25 related physical activities. (Tr. 515-16, 696-97, 326-37.) Dr. Koryakos consistently 26 found that Plaintiff was limited to sitting, standing, and walking for two hours in an 27 eight-hour day. (Id.) The ALJ rejected Dr. Koryakos’s opinions. (Tr. 32.) He explained 28 that Dr. Koryakos’s opinions that Plaintiff was unable to perform any work were - 15 - 1 inconsistent “with the greater objective record.” (Id.) The ALJ also stated that 2 Dr. Koryakos “did not offer any specific laboratory or clinical findings to support his 3 assessed limitations.” (Id.) As an example, the ALJ cited a May 18, 2011 treatment note 4 that included “grossly normal neurological findings.” (Id. (citing Admin. Hrg. Ex. 33F at 5 3).) 6 As Plaintiff argues, the ALJ erred in rejecting Dr. Koryakos’s opinions as 7 inconsistent with the medical record and as unsupported by clinical findings. Plaintiff 8 argues that it was error for the ALJ to reject Dr. Koryakos’s opinions based on 9 inconsistency with the objective record and as unsupported by laboratory findings 10 because fibromyalgia does not produce positive laboratory tests or similar objective 11 evidence.4 (Doc. 25 at 17.) The Commissioner does not address this argument in her 12 response. (Doc. 26 at 16-20.) The Ninth Circuit has recognized that fibromyalgia eludes 13 objective measurement. See Benecke v. Barnhart, 379 F.3d 587, 590 (9th Cir. 2004) 14 (“Fibromyalgia’s cause is unknown, there is no cure, and it is poorly-understood within 15 much of the medical community. The disease is diagnosed entirely on the basis of 16 patients’ reports of pain and other symptoms.”); see also Jordan v. Northrop Grumman 17 Corp., 370 F.3d 869, 872 (9th Cir. 2004) (fibromyalgia’s “symptoms are entirely 18 subjective. There are no laboratory tests for [its] presence or severity”), overruled in 19 non-relevant part by Abatie v. Alta Health & Life Ins. Co., 258 F.3d 955, 969 (9th Cir. 20 2006) (en banc); Lang v. Long–Term Disability Plan of Sponsor Applied Remote Tech., 21 Inc., 125 F.3d 794, 796 (9th Cir. 1997) (same). 22 As the Ninth Circuit has explained, “[t]he American College of Rheumatology 23 [has] issued a set of agreed-upon diagnostic criteria in 1990, but to date there are no 24 laboratory tests to confirm the diagnosis.” Benecke, 379 F.3d at 590. The accepted 25 4 26 27 28 Although the ALJ did not find Plaintiff’s fibromyalgia severe, he was required to consider it when determining whether she was disabled. See Smolen v. Chater, 80 F.3d 1273, 1290 (9th Cir. 1996) (recognizing that, if one severe impairment exists, all medically determinable impairments must be considered in the remaining steps of the sequential analysis). - 16 - 1 diagnostic test for fibromyalgia is that an individual must have pain in eleven of eighteen 2 tender points. See Jordan, 370 F.3d at 877; see also Rollins v. Massanari, 261 F.3d 853, 3 855 (9th Cir. 2001) (claimant had eleven of eighteen tender points). Here, Plaintiff had 4 sixteen of eighteen tender points and had chronic pain. (Tr. 731, 521, 523, 525, 531, 535, 5 716, 718, 725, 884-86, 888-89, 891-95, 897-99.) 6 Additionally, there are “clinical findings” to support the assessed limitations. 7 Plaintiff had fibromyalgia, carpal tunnel, headaches, depression and anxiety. Treatment 8 records reflect positive response to multiple fibromyalgia trigger points (Tr. 448-49, 452), 9 lumbar paraspinal muscle tenderness (Tr. 454), elevated liver function tests (Tr. 476), low 10 red blood cell, hemoglobin, and hematocrit tests (Tr. 498), neural foraminal narrowing 11 and facet arthropathy on the cervical spine MRI (Tr. 509-10), decreased range of motion 12 in the neck, back, and hips (Tr. 730), positive Tinel’s and Phalen’s signs in the left wrist 13 (Tr. 731), a positive impingement sign in the left shoulder (Tr. 780), abnormalities in 14 memory and concentration during psychiatric testing (Tr. 736), an MRI showing AC 15 arthrosis in the left shoulder (Tr. 791), evidence of bulging discs and degenerative 16 changes on an MRI of the cervical spine (Tr. 792), and median neuropathy of the wrist on 17 an EMG test. (Tr. 795-96.) 18 Therefore, the ALJ erred in rejecting Dr. Koryakos’s opinions. That error was not 19 harmless because the vocational expert testified that an individual with the limitations 20 that Dr. Koryakos assessed would be unable to sustain employment. 21 Accordingly, the Court reveres the Commissioner’s disability determination.5 22 VII. (Tr. 80-81.) Whether to Remand for Benefits or Further Proceedings 23 Having found that the ALJ erred in assigning little weight to Dr. Koryakos’s 24 opinions, the Court reverses the Commissioner’s decision. The Court has the discretion 25 to remand the case for further development of the record or for an award benefits. See 26 Reddick, 157 F.3d at 728. The decision to remand for benefits is controlled by the Ninth 27 5 28 Having concluded that the ALJ committed reversible error by rejecting Dr. Koryakos’s opinions, the Court does not need to reach Plaintiff’s other claims of error. (Doc. 25.) - 17 - 1 Circuit’s “three-part credit-as-true standard.” Garrison v. Colvin, 759 F.3d 995, 1020 2 (9th Cir. 2014). Under that standard, evidence should be credited as true and an action 3 remanded for an immediate award of benefits when each of the following factors are 4 present: “(1) the record has been fully developed and further administrative proceedings 5 would serve no useful purpose; (2) the ALJ has failed to provide legally sufficient 6 reasons for rejecting evidence, whether claimant’s testimony or medical opinion; and 7 (3) if the improperly discredited evidence were credited as true, the ALJ would be 8 required to find the claimant disabled on remand.” Id. (citing Ryan v. Comm’r Soc. Sec., 9 528 F.3d 1194, 1202 (9th Cir. 2008)); see also Benecke, 379 F.3d at 595. 10 Plaintiff has satisfied all three criteria of the credit-as-true rule. On the first factor, 11 there is no need to further develop the record. See Garrison, 759 F.3d at 1021 (citing 12 Benecke, 379 F.3d at 595) (“Allowing the Commissioner to decide the issue again would 13 create an unfair ‘heads we win; tails, let’s play again’ system of disability benefits 14 adjudication.”)). 15 reasons for rejecting the opinions of treating physician Dr. Koryakos. On the third factor, 16 if the discredited evidence were credited as true, the ALJ would be required to find 17 Plaintiff disabled on remand because the vocational expert testified that a person with the 18 sitting, standing, and walking and limitations that Dr. Koryakos identified would be 19 incapable of sustained full-time work. (Tr. 80-81.) Therefore, based on this evidence, 20 Plaintiff is disabled. 21 vocational expert testified that a person with the plaintiff’s RFC would be unable to 22 work, “we can conclude that [the plaintiff] is disabled without remanding for further 23 proceedings to determine anew her RFC.”). On the second factor, the ALJ failed to provide legally sufficient See Garrison, 759 F.3d at 1022 n.28 (stating that when the 24 Having concluded that Plaintiff meets the three criteria of the credit-as-true rule, 25 the Court considers “the relevant testimony [and opinion evidence] to be established as 26 true and remand[s] for an award of benefits[,]” Benecke, 379 F.3d at 593 (citations 27 omitted), unless “the record as a whole creates serious doubt as to whether the claimant 28 - 18 - 1 is, in fact, disabled with the meaning of the Social Security Act.” Garrison, 759 F.3d at 2 1021) (citations omitted). 3 Considering the record as a whole, there is no reason for serious doubt as to 4 whether Plaintiff is disabled. See Garrison, 759 F.3d at 1021 (stating that that when the 5 court conclude “that a claimant is otherwise entitled to an immediate award of benefits 6 under the credit-as-true analysis, [the court has] flexibility to remand for further 7 proceedings when the record as a whole creates serious doubt as to whether the claimant 8 is, in fact, disabled within the meaning of the Social Security Act.”). The ALJ failed to 9 set forth specific and legitimate reasons supported by substantial evidence for rejecting 10 Dr. Koryakos’s opinions. When a hypothetical question was posed to the vocational 11 expert incorporating limitations that Dr. Koryakos identified, the vocational expert 12 testified that such limitations would preclude Plaintiff from working. (Tr. 80-81.) On the 13 record before the Court, Dr. Koryakos’s opinions should be credited as true and the case 14 remanded for an award of benefits. 15 Accordingly, 16 IT IS ORDERED that the Commissioner’s decision denying benefits is reversed 17 18 19 20 and this matter is remanded for an award of benefits. IT IS FURTHER ORDERED that the Clerk of Court shall enter judgment accordingly and terminate this case. Dated this 19th day of February, 2015. 21 22 23 24 25 26 27 28 - 19 -

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