Railey v. Colvin

Filing 33

ORDERED that Plaintiff's Opening Brief is granted; the Commissioner's decision is reversed and remanded. Upon remand, the Appeals Council will remand the case back to the ALJ on an open record and the Clerk of the Court shall enter judgment and close its file in this matter. Signed by Magistrate Judge Bruce G Macdonald on 3/26/2018. (BAR)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Melissa Railey,

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No. CV-14-02321-TUC-BGM
Plaintiff,
ORDER

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v.
Nancy A. Berryhill,
Acting Commissioner of Social Security,
Defendant.

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Currently pending before the Court is Plaintiff’s Opening Brief (Doc. 17).

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Defendant filed her Brief (“Response”) (Doc. 31), and Plaintiff filed her Reply Brief

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(“Reply”) (Doc. 32). Plaintiff brings this cause of action for review of the final decision

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of the Commissioner for Social Security pursuant to 42 U.S.C. § 405(g). Compl. (Doc.

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1). The United States Magistrate Judge has received the written consent of both parties,

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and presides over this case pursuant to 28 U.S.C. § 636(c) and Rule 73, Federal Rules of

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Civil Procedure.

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I.

BACKGROUND

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A.

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On July 22, 2011, Plaintiff filed a Title II application for Social Security Disability

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Insurance Benefits (“DIB”) alleging disability as of November 2, 2010 due to chronic

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back pain, diabetes, cough, obesity, asthma, and status post left knee surgery. See

Procedural History

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Administrative Record (“AR”) at 13, 15, 21, 28, 52–53, 61, 65–67, 74, 137, 160, 162,

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165, 183, 202. Plaintiff’s date last insured is March 31, 2013. Id. at 15, 28, 53, 66, 160.

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The Social Security Administration (“SSA”) denied this application on December 8,

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2011. Id. at 13, 52–64, 78–81. Plaintiff filed a request for reconsideration, and on May

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17, 2012, SSA denied Plaintiff’s application upon reconsideration. Id. at 13, 65–77, 91–

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94. On May 21, 2012, Plaintiff filed her request for hearing. Id. at 13, 95. On January 9,

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2013, a hearing was held before Administrative Law Judge (“ALJ”) Lauren R. Mathon.

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AR at 13, 26–51. On February 1, 2013, the ALJ issued an unfavorable decision. Id. at

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10–21. On March 28, 2013, Plaintiff requested review of the ALJ’s decision by the

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Appeals Council, and on July 10, 2014, review was denied. Id. at 1–3, 6–7.

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On August 29, 2014, Plaintiff filed this cause of action.

Compl. (Doc. 1).

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Plaintiff filed her Opening Brief (Doc. 17) on April 11, 2015.

Defendant filed a

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Stipulated Motion to Remand (Doc. 21), which was granted by the Court. See Order

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6/17/2015 (Doc. 24). Upon remand the Appeals Council again denied review, and the

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Parties moved to reopen this cause of action. See Stipulated Mot. to Reopen (Doc. 26).

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Defendant filed her response brief upon reopening of the case, and Plaintiff subsequently

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replied.

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B.

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Plaintiff was thirty-eight (38) years old at the time of the administrative hearing

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and thirty-six (36) at the time of the alleged onset of her disability. AR at 19, 31, 52–53,

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61, 65–66, 74, 137, 160, 183, 202. Plaintiff graduated from high school and completed

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approximately one (1) year of college. Id. at 19, 34–35, 76, 165. Prior to her alleged

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disability, Plaintiff worked as a medical assistant, phlebotomist, kids club advisor,

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teacher, and cashier. Id. at 35, 62–63, 75, 166, 172–79.

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Factual History

1. Plaintiff’s Testimony
a. Administrative Hearing

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At the administrative hearing, Plaintiff testified that she lives with her children,

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ages fourteen (14), eleven (11), and two (2). AR at 31–32. Plaintiff further testified that

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she feeds and clothes her two (2) year old, as well as spends time with him, including

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watching television. Id. at 32. Plaintiff also testified, however, that she seldom does his

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laundry, and rarely cleans the house or cleans his room. Id. at 32–33. Plaintiff testified

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that she does grocery shop. Id. When asked why she began adoption of a newborn at the

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time that she became disabled, Plaintiff explained that the child was her great-nephew,

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and there were no other relatives with a clean background able to take him in. Id. at 37–

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38. Plaintiff further explained that her extended family gave her more help and support

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during that time. AR at 38.

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Plaintiff testified that the older children walk to school, and that she is able to

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attend meetings at school for them. Id. at 33. Plaintiff further testified that she rarely

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takes the children anywhere on the weekend. Id. Plaintiff also testified that the older

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children have medical conditions requiring her to monitor their daily medication. Id. at

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33–34. Plaintiff noted that the older children help with the household chores. Id. at 34.

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Plaintiff testified that she has a high school education, plus one (1) year of college.

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AR at 34. Plaintiff further testified that she supported herself since her alleged onset date

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by receiving cash assistance, food stamps, and child support. Id. at 35. Plaintiff stated

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that she drives a maximum of approximately three (3) days per week. Id. Plaintiff also

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testified that she has not traveled anywhere beyond Tucson since her alleged onset date.

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Id.

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Plaintiff testified that her last job was in October of 2008, working as a medical

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assistant and phlebotomist. Id. Plaintiff further testified that she had to stop working

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because of her chronic cough, which prohibited her from working with patients. AR at

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35. Plaintiff said that she had applied for medical assistant positions since then, despite

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her cough, because it was the only position for which she was trained. Id. at 35–36.

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Plaintiff also stated that she had also worked as a certified nurse’s assistant, as a childcare

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worker, and in retail. Id. at 36. Plaintiff testified that she can stand for approximately

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five (5) to ten (10) minutes at a time, and can walk for approximately one half of a block

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before needing to rest. Id. at 36. Plaintiff further testified that walking and standing

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results in shortness of breath and severe lower back pain. Id. at 37. Plaintiff also testified

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that she could sit in a chair for approximately three (3) to five (5) minutes before needing

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to change positions, but noted that her chronic cough was an impediment to performing

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any work on the telephone. AR at 37.

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Plaintiff testified that she sees Drs. Sakali and LaHood, asthma and allergy

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specialists, for treatment of her cough. Id. at 38–39. Plaintiff indicated that her treatment

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originally involved allergy shots; however, she was allergic to the shots, so she was

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prescribed two (2) different inhalers, a nebulizer, and a nasal spray. Id. at 39. Plaintiff

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described Nurse Practitioner McLeod as her primary care physician, and confirmed that

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she was still treating with Drs. Raysford and Gorman. Id.
b. Administrative Forms

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Plaintiff completed a Function Report—Adult in this matter. AR at 165–71.

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Plaintiff described her medical conditions as “[a]rthritis in lower back, asthma, allergies,

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diabetes, etc.” Id. at 165. Plaintiff noted her last day of work as October 1, 2007, and

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attributed her stopping work to her medical conditions. Id. Plaintiff reported her highest

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grade of school completed as one (1) year of college. Id. Plaintiff listed her prior work

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history as including medical assistant, child care, certified nursing assistant, cashier, and

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beauty advisor. Id. at 166. Plaintiff reported her medications as Advair Diskus, altrovent

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inhaler, Folic acid, Glimepiride, Hydroxyzine pamoate, Intal inhaler, LANTUS/Insulin,

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Metformin, omeprazole, and pain medication. AR at 168.

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Plaintiff also completed an Exertional Daily Activities Questionnaire. Id. at 180–

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82. Plaintiff reported that she lived in a house with her children. Id. at 180. Plaintiff

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described her average day as waking up, getting her children up for school, eating

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breakfast, taking her medication, and waiting for a family member of friend to come over

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and help her with the baby, laundry, and cleaning. Id. Plaintiff also stated that during a

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typical day she would take a nap for approximately thirty (30) minutes. Id. Plaintiff

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further reported that she would help her children with their homework, make dinner when

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she could, watch television or read with the kids, try to walk outside, come home, take a

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shower, and try to get some rest. AR at 180.

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Plaintiff described her symptoms to include “[s]hortness of breath, when [she]

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walk[s] a short distance[;] [b]ack pain when[] [she] walk[s], sit[s], lay[s] down, [a] lot of

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time it takes [her] about 10–15 min[utes] to get out of the bed[;] [a]llergies stayed flarred

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[sic] up witch [sic] is what causes [her] to have a crhonic [sic] cough, and make[s] it

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harder on [her] asthma.” Id. Plaintiff stated that she “tr[ies] to walk [a]bout a block

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before [she] [is] short of breath[,] [and] [it] takes [her] about 30 min[utes] to go around

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the block[.]” Id. Plaintiff further stated that she “can lift thigs [sic] that hardly have any

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weight to [them][,] [and] [] can carry the baby back pack[,] [but] lifting a gallon [of] milk

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can most of [the] time make the pain in [her] back sharper[.]” Id. at 181. Plaintiff

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indicated that she can “sometimes” perform household chores, including folding laundry

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while seated, and cooking meals. Id. Plaintiff noted, however, that standing during

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cooking “cause[s] excruciating pain in [her] back[.]” AR at 181. Plaintiff also reported

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that she has difficulty finishing housework and chores, because she “can do very little

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before [] get[ting] shortness of breath and [her] back [] hurting excruciating[ly].” Id.

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Plaintiff stated that she does drive, but can only do so for approximately twenty

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(20) minutes, “before [her] back starts hurting really ba[d].” Id. Plaintiff noted that she

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tries to walk, but can only go about “a block before [she] [is] out of breath [and her] back

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hurting[.]” Id. Plaintiff reported that her ability to do chores or activities has changed

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since becoming disabled. Id. Further, Plaintiff indicated that she sleeps approximately

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three (3) to four (4) hours per night, and requires periodic rests or naps during the day,

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“[d]epending on the sharpness of pain and shortness of breath.” AR at 181. Plaintiff

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listed her medication to include Rena-vite, B-12, omeprazole, Vitamin D3, codeine

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sulfate, Balclofen, and ADIPEX-P. Id. at 182.

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With her appeal forms, Plaintiff completed a check box form indicating her

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abilities. Id. at 200. Regarding caring for pets or other people, Plaintiff indicated that she

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could not carry heavy bags of food; bend down to feed and water the pets; pick up her

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children; or play with them of the floor. Id. Plaintiff further indicated that she could pick

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up toys and care for other people “only sometimes.” Id. Regarding her personal care,

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Plaintiff reported that she never slept well, and could “only sometimes” button and zip

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her clothing; put on socks and shoes; stand in the shower; wash her back, feet, and hair;

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and clean herself after using the toilet. AR at 200. Regarding cooking, Plaintiff indicated

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that she could not stand for long periods of time in front of the stove or sink; reach up

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high, or bend down low; or lift and carry heavy, hot items. Id. Plaintiff noted that she

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could understand and follow recipes or other written instructions; use knives to prepare

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food; and wash dishes without dropping and breaking them “only sometimes.” Id.

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Regarding cleaning her living space, yard, and clothes, Plaintiff reported that she could

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never use a broom, mop, and vacuum cleaner; clean more than one room at a time

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without resting; move furniture; carry heavy laundry baskets; lift wet clothes out of the

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washer; or bend to put clothes in the dryer. Id.

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Plaintiff reported that regarding driving and getting around she could drive herself

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to appointments or without limitations only sometimes, and could never sit for long

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periods of time; take a trip without stopping frequently to get out of the car; or take a bus

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by herself. Id. at 201. Regarding shopping for groceries, Plaintiff indicated that she

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could never walk for long periods of time without resting; take heavy bags out of the car

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and load them into the car; carry heavy bags into the house and put the things away;

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handle lots of people around her; or stand in line for long periods of time. AR at 201.

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Additionally, Plaintiff indicated that she could only sometimes get up and walk again

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after resting just a few minutes. Id. In addressing cognitive and emotional problems,

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Plaintiff reported that she could only sometimes remember when to pay the bills;

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remember her appointments; follow spoken instructions; pay attention or concentrate;

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always understand what is going on; finish things that she started; handle changes in

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routine; and accepting criticism. Id. Plaintiff reported not being able to do her favorite

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hobbies or use her hands to type for long periods of time, and only sometimes able to use

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her hands to pick up and use small items. Id. Finally, Plaintiff noted that she could no

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longer do the social activities that she used to enjoy or go places by herself, and only

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sometimes gets along with people. Id.

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Additionally, Plaintiff completed a Work History Report. AR at 172–79. Plaintiff

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listed her jobs prior to the alleged onset of her disability to include medical

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assistant/phlebotomist, beauty advisor, kids club advisor, teacher, cashier, crossing guard,

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and bus monitor. Id. at 172. Plaintiff reported that as a medical assistant/phlebotomist

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she would “greet patients[;] take vitals[;] take or assist [patient] to assigned room[;]

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collect history notes[;] give [patient] shots as request[ed] by physician[;] assist [doctor] in

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minor surgeries[;] [and] draw blood [for lab work][.]” Id. at 173. Plaintiff further

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reported that this job required machines, tools, or equipment; technical knowledge or

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skills; and that she wrote or completed reports. Id. Plaintiff also reported that she

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walked, stood, or stooped, for approximately eight (8) hours per day. Id. Plaintiff

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indicated that she also occasionally lifted patients onto the table, and that she also carried

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boxes of supplies from the supply room to the patient rooms. AR at 173. Plaintiff noted

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that the heaviest weight she lifted was fifty (50) pounds, and she frequently lifted less

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than ten (10) pounds. Id.

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Plaintiff reported that as a beauty advisor she performed customer service, ran a

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cash register, and set up displays. Id. at 174. Plaintiff further reported that in this

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position she used machines, tools, or equipment; technical knowledge or skills; and wrote

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or completed reports. Id. Plaintiff also reported that in this position she walked; stood;

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kneeled; crouched; crawled; handled big objects; and stooped for at least half her work

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day. Id. Plaintiff indicated that in addition to working the cash register, she packaged

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products, restocked shelves, and retrieved products for customers. Plaintiff reported that

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the heaviest weight she lifted was fifty (50) pounds, and she frequently lifted less than ten

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(10) pounds. AR at 174.

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Plaintiff reported that as a kids club advisor she provided coordinated activities

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and projects for children, as well as played with them and maintained a safe environment

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for them while their parent worked out at the fitness club. Id. at 175. Plaintiff described

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her job as requiring the use of machines, tools, or equipment; technical knowledge or

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skills; and writing or completing reports. Id. Plaintiff further reported the job required

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her to walk; stand; sit; stoop; kneel; crouch; crawl; handle both large and small objects;

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and reach. Id. In this position, Plaintiff regularly lifted infants and toddlers. Id. Plaintiff

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reported that in this position the heaviest weight she lifted was fifty (50) pounds, and she

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frequently lifted twenty-five (25) to fifty (50) pounds. AR at 175.

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Plaintiff described her position as a teacher as “car[ing] for and teach[ing] children

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and toddlers, prep[aring] them for kindergarten[.]” Id. at 176. Plaintiff noted that she

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worked with children between two (2) and five (5) years of age, and that this work also

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required her to potty train some children. Id. Plaintiff reported that this job required the

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use of machines, tools, or equipment; technical knowledge or skills; and writing or

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completing reports. Id. Plaintiff indicated that the job required her to walk; stand; sit;

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stoop; crouch; handle, grab or grasp both large and small objects; and reach. Id. Plaintiff

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reported that she carried toddlers, as well as toys, books, tables, and other equipment on a

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daily basis.

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approximately fifty (50) pounds, and that she frequently lifted between twenty-five (25)

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and fifty (50) pounds. Id.

AR at 176.

Plaintiff stated that the heaviest weight she lifted was

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Plaintiff described her position as a cashier as taking customer orders; collecting

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money for those orders; preparing meals; stocking items; and cleaning, including

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sweeping and mopping the dining area, cleaning windows, and cleaning restrooms. Id. at

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177. Plaintiff reported that this job required the use of machines, tools, or equipment;

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technical knowledge or skills; and writing or completing reports. Id. Plaintiff further

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reported that the job required her to walk; stand; stoop; kneel; crouch; reach; and handle

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small objects frequently and large objects only occasionally. Id. Plaintiff noted that she

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lifted meals, sometimes delivering them to the customer’s table; carried large tea

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dispenser from the lobby to the back of the restaurant; and carried frozen food items from

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the walk-in freezer to the cooking area. AR at 177. Plaintiff indicated that the heaviest

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weight she lifted was approximately twenty (20) pounds, and that she frequently lifted ten

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(10) pounds or less. Id.

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Plaintiff described her position as a cashier, stocker, and beauty advisor as running

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the cash register, stocking items, performing an inventory, revising shelves, and customer

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service. Id. at 178. Plaintiff reported that this position required the use of machines,

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tools, or equipment; technical knowledge or skills; and writing or completing reports. Id.

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Plaintiff also reported that the job required her to walk, stand, and stoop frequently. Id.

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Plaintiff noted that she was also required to kneel, crouch, crawl, reach, and handle large

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and small objects, with varying frequency. AR at 178. Plaintiff indicated that she was

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required to carry items to the register or move them to other areas of the store. Id.

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Plaintiff reported the heaviest weight she lifted as fifty (50) pounds, and that she

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frequently lifted twenty-five (25) pounds or less. Id.
2. Vocational Expert Kathryn Atha’s Testimony

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Ms. Kathryn A. Atha testified as a vocational expert at the administrative hearing.

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AR at 13, 40–50. Ms. Atha described Plaintiff’s past work in a retail store as a beauty

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advisor as a salesperson of cosmetics and toiletries, Dictionary of Occupational Titles

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(“DOT”) number 262.357-018, as light work, semi-skilled, and a Specific Vocational

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Preparation (“SVP”) of 4. Id. at 40. Ms. Atha described Plaintiff’s past work as a retail

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sales clerk, DOT number 290.477-014, light work, and an SVP of 3. Id. Ms. Atha

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described Plaintiff’s past work of a nurse assistant, DOT number 355.674-014, as

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medium work, SVP of 4, and semi-skilled. Id. at 41. Ms. Atha described Plaintiff’s past

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work of medical assistant as DOT number 079.362-010, light work, SVP of 6, and

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skilled, and phlebotomist as DOT number 079.364-022, also light work, and an SVP of 3.

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Id. Ms. Atha described Plaintiff’s past work as a child daycare center worker as DOT

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number 359.677-018, light work, semi-skilled, and an SVP of 4. AR at 41. Ms. Atha

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also discussed Plaintiff’s past work as a school crossing guard and school bus monitor;

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however, neither of these were full-time employment. Id. at 41–43.

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The ALJ asked Ms. Atha about a hypothetical individual with the same age,

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education, and vocational background as Plaintiff. Id. at 43. The ALJ then asked Ms.

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Atha to describe any past work or other work for such an individual, with the additional

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limitations of being able to “lift and/or carry 50 pounds occasionally, 25 pounds

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frequently; can stand and/or walk six hours in an eight hour day; postural limitations are

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never climb ladders, ropes, scaffolds; can frequently climb ramps, stairs, balance, stoop,

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kneel, crouch and crawl[,] [a]nd environmental limitations are avoid concentrated

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exposure to cold, heat, vibration, fumes, odors, dust, gases, poor ventilation[,] and

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hazards.” Id. at 43–44. Ms. Atha testified that such an individual would be able to do the

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jobs represented by Plaintiff’s past relevant work. Id. at 44. The ALJ posed another

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hypothetical encompassing the previous one, but with the additional limitation of light

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work. AR at 44. Ms. Atha testified that all of Plaintiff’s past relevant work could be

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performed, with the exception of nurse assistant. Id. The ALJ then modified the light

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work limitation to sedentary work. Id. Ms. Atha testified that such an individual could

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work as an appointment clerk, DOT number 237.367-010, semi-skilled, an SVP of 3, and

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sedentary. Id. Ms. Atha also indicated that a receptionist, DOT number 237.367-0368,

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an SVP of 4, and sedentary, would be available to such an individual. Id. at 44–45.

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The ALJ also re-asked Ms. Atha each hypothetical, but included the additional

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limitation on avoiding working with the public. AR at 45–47. For medium exertional

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level jobs, Ms. Atha testified that Plaintiff could work as a kitchen helper, DOT number

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318.687-010, with an SVP of 2. Id. at 45–46. Ms. Atha also testified that Plaintiff could

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be a warehouse worker, DOT number 922.687-058, medium work, with an SVP of 2. Id.

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at 46. Regarding possible jobs at the light exertional level, again avoiding the public, and

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with all prior restrictions, Ms. Atha testified that Plaintiff could work as a hotel maid,

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DOT number 323.687-014, unskilled, with an SVP of 2, or as a production assembler,

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DOT number 706.687-010, with an SVP of 2. Id. For such a hypothetical individual, but

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limited to sedentary work and avoiding the public, Ms. Atha testified that Plaintiff could

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work as a toy stuffer, DOT number 761.685-014, with an SVP of 2, or as a nut sorter,

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DOT number 521.687-086, also with an SVP of 2. Id. at 47.

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The ALJ posed a final question regarding possible work for a hypothetical

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individual with the same age, education, and vocational background as Plaintiff, and the

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“[a]bility to stand during an eight hour period, two hours or less; ability to walk at one

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time before needing to stop, less than one block; never carry 10 pounds; never carry 20

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pounds[,] . . . [and sitting for] 15 minutes to 30 minutes or less[,] [but] . . . [without a]

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capacity maximum during the day of sitting.” AR at 48. Ms. Atha testified that she

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needed more information in order to form an opinion regarding such an individual. Id.

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Plaintiff’s counsel asked Ms. Atha about the availability of jobs for a hypothetical

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person as described in the ALJ’s final hypothetical, but with the limitation that such an

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individual could “sit for the entire day, but she can sit at one time for less than 15 to 30

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minutes and then she needs to take a five minute[] break and then go back to sitting, but

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primarily she’ll be sitting.” Id. at 49. Ms. Atha testified that the sedentary, unskilled jobs

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of toy stuffer and nut sorter would be available to such a person. Id. at 49–50. Ms. Atha

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further testified that her testimony was consistent with her personal training and

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experience, as well as her interpretation of the Dictionary of Occupational Titles. Id. at

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50.

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3. Plaintiff’s Medical Records
a. Treatment records

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On October 28, 2008, Plaintiff was seen by Nabeeh N. LaHood, M.D. at Allergy,

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Asthma Associates, P.C. upon referral by NP McLeod. AR at 259–60. Plaintiff was seen

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regarding her allergies, and Dr. LaHood’s physical examination of her was unremarkable.

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Id. at 259. Dr. LaHood noted his impression that Plaintiff had “allergic rhinitis, allergic

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conjunctivitis, asthma, atopic dermatitis, and questionable food allergy.” Id. at 259–60.

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Dr. LaHood performed a pulmonary function tests on Plaintiff before and after a

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bronchodilator, both of which were within normal limits. Id. at 260. Dr. LaHood also

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performed food and aeroallergy testing on Plaintiff. Id. Dr. LaHood reported that food

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testing revealed Plaintiff to be positive to cherry, egg white, peanut, soybean, trout fish,

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codfish, grapefruit, pecan, tuna fish, cabbage, cucumber, avocado, and hazelnut. AR at

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260. Additionally, “[t]he aeroallergy testing revealed that [Plaintiff] was strongly allergic

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to all of the grasses, trees[,] and many weeds and molds she was tested for in addition to

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cat dander and cockroach.” Id. Dr. LaHood prescribed Flonase, Advair, prednisone, and

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Atarax, as well as starting Plaintiff on allergy immunotherapy. Id.

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On November 11, 2008, Plaintiff saw Dr. LaHood for her allergies. Id. at 258.

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Dr. LaHood noted that Plaintiff “stated that she ha[d] been doing fairly well.” Id. Dr.

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LaHood further reported that Plaintiff’s atopic dermatitis had been stable. AR at 258.

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Additionally, he advised her to continue the allergy immunotherapy and the medications

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he had prescribed. Id.

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On January 29, 2009, Plaintiff saw Dr. LaHood regarding her allergies, and

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reported that she “ha[d] been having a cough for a couple of months[,] . . . [and] was

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started on Z-Pak [the previous day.]” Id. at 257. Dr. LaHood noted his impression that

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Plaintiff “ha[d] asthma, allergic rhinitis, allergic conjunctivitis[,] and resolving

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bronchitis.”

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bronchodilator which were within normal limits. Id. Dr. LaHood “advised her to take

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GE reflux measures[,] [and] . . . started her on Atrovent two puffs three times per day to

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improve her cough secondary to GE reflux, [and] Singulair 10 mg every evening.” AR at

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257. Dr. LaHood also informed Plaintiff to continue the allergy immunotherapy. Id.

Id.

Plaintiff underwent pulmonary function tests before and after a

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On February 4, 2009, Plaintiff was seen by Sam E. Sato, M.D. for an

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ophthalmological evaluation. Id. at 300–05. Plaintiff reported a history of her right eye

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wandering out.

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exercises in the past without improvement. Id. Plaintiff stated that her condition causes

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eyestrain when trying to read, and she sees double. AR at 301. Dr. Sato noted that

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Plaintiff’s external exam was normal; however, corrective surgery was required. Id. Dr.

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Sato also noted his concern that Plaintiff may develop glaucoma based on her

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asymmetrical optic nerve cups. Id.

Id. at 301.

Plaintiff further reported having tried glasses and eye

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On April 24, 2009, Plaintiff underwent surgery for Exotropia at Camp Lowell

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Surgery Center. Id. at 230, 316, 318. Sam Sato, M.D. performed a five (5) millimeter,

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bilateral, lateral rectus recession. Id. at 230–48, 318–19. The surgery was unremarkable,

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and Plaintiff was discharged home the same day. AR at 244.

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On May 14, 2009, Plaintiff returned to see Dr. LaHood for a follow-up. Id. at 256.

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Dr. LaHood noted that Plaintiff stated the she “feels better since she has been on

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immunotherapy with decreased congestion and mild sneezing[,] [and] [s]he [has] also

4

noticed a significant decrease in her postnasal drip and no coughing.” Id. Dr. LaHood’s

5

physical examination of Plaintiff was unremarkable, and he noted his impressions of

6

asthma, allergic rhinitis, and allergic conjunctivitis.

7

treatment plan for Plaintiff as continuing “immunotherapy per protocol and Advair

8

Diskus 250/50 once a day[,] . . . [as well as] Intal twice a day and albuterol as needed for

9

shortness of breath.” Id. Plaintiff also saw Dr. Sato for a follow-up the same day. AR at

10

298–99. Dr. Sato that Plaintiff’s eyes were better than prior to surgery; however, she still

11

had intermittent exotropia. Id. at 299.

Id.

Dr. LaHood outlined his

12

On June 11, 2009, Plaintiff again followed-up with Dr. Sato. Id. at 296–97. Dr.

13

Sato noted that Plaintiff was a glaucoma suspect due to “an enlarged cup-to-disk ratio and

14

ocular hypertension.” Id. at 296. Plaintiff reported that her right eye was still drifting,

15

and she did not have glasses. Id. Dr. Sato contemplated a right medial rectus resection.

16

AR at 296.

17

On July 30, 2009, Plaintiff followed-up with Dr. Sato. Id. at 294–95. Plaintiff

18

reported that she still sees her eyes drifting and is still getting image jump and eyestrain.

19

Id. Dr. Sato noted that they were considering additional eye muscle surgery. Id.

20

On September 18, 2009, Plaintiff saw Bobbie Jo Smalley, O.D. Id. at 291, 293.

21

Plaintiff reported severe headaches with increased exotropia. Id. at 293. Dr. Smalley

22

recommended a consecutive eye muscle surgery, but wanted Plaintiff to follow-up with

23

Dr. Sato for his recommendation. AR at 291. On September 30, 2009, Plaintiff was seen

24

by Dr. Sato who discussed the medial rectus resection procedure in detail. Id. at 292.

25

On October 12, 2009, Plaintiff saw Dr. Smalley on an emergency basis. Id. at

26

290. Plaintiff reported that she had been seen in the emergency department, because her

27

eye had started to get swollen and very painful. Id. at 290. Plaintiff further reported that

28

she had been told that she had herpes in her eye, and was given a prescription which are

- 13 -

1

insurance did not cover. Id. On October 14, 2009, Plaintiff returned for her two day

2

follow-up regarding the right herpetic blepheral cellulitis. AR at 287, 289. Dr. Smalley

3

had prescribed Vigamox drops, bacitracin ointment, and a course of Acyclovir. Id. at

4

287. Dr. Smalley reported that Plaintiff’s right eyelid was markedly improved. Id. On

5

October 20, 2009, Plaintiff again followed up regarding her right herpetic blepheral

6

cellulitis. Id. at 288. Dr. Smalley reported that she was doing much better, with only

7

mild symptoms. Id.

8

On November 12, 2009, Plaintiff returned to Dr. LaHood “with complaints of a

9

cough, postnasal drip, sinus pressure headaches, and occasional heartburn.” AR at 255.

10

Dr. LaHood noted that Plaintiff “stopped her immunotherapy secondary to her current

11

reactions.” Id. Dr. LaHood’s physical examination of Plaintiff was unremarkable, and

12

he noted his impressions to include “allergic rhinitis, allergic conjunctivitis, GERD, and

13

asthma.”

14

antihistamines.” Id. Dr. LaHood also prescribed Clarinex instead of over-the-counter

15

antihistamines, and continued Plaintiff’s use of Advair Diskus 250/50 and Singulair, with

16

the addition of omeprazole. Id. On November 20, 2009, Plaintiff returned to Camp

17

Lowell Surgery Center for a four (4) millimeter, bilateral, medial rectus recession. AR at

18

211–29, 284–86, 317. Dr. Sato again performed the surgery, and Plaintiff was discharged

19

home the same day. Id. at 211, 225, 285, 317.

Id.

Dr. LaHood “recommended [Plaintiff] to use nasal steroids and

20

On December 2, 2009, Plaintiff returned to Dr. Sato for a postoperative follow-up.

21

Id. at 282–83. Plaintiff reported or double vision improved. Id. at 282. On December

22

16, 2009, Plaintiff again saw Dr. Sato. Id. at 280–81. Dr. Sato noted that Plaintiff was

23

doing much better overall, and was pleased with the results. Id. at 280. Dr. Sato further

24

reported that Plaintiff’s I looked good, she no longer had double vision, but did feel some

25

pulling medially. AR at 280. On the same date, Plaintiff was seen by Kathleen McLeod,

26

F.N.P., for an annual exam. Id. at 331–33. Plaintiff reported that her eye surgeries had

27

been successful, but complained of being constantly tired, and suffering low back pain.

28

Id. at 331. Upon examination, NP McLeod noted Plaintiff was positive for fatigue, ear

- 14 -

1

pain, sore throat with swollen right tonsil, postnasal drip, and cough with dark

2

yellow/green phlegm. Id. at 331–32. NP McLeod ordered lab work, and instructed

3

Plaintiff to exercise and follow a low fat diet. Id. at 332–33. On December 18, 2009,

4

Plaintiff returned to NP McLeod complaining of earache and sore throat. AR at 334–35.

5

NP McLeod assessed an upper respiratory infection and pharyngitis. Id. at 334. NP

6

McLeod prescribed azithromycin and pseudoephedrine, and recommended zinc, rest, and

7

fluids. Id. at 334–35. On December 22, 2009, Plaintiff was seen by Dr. Sato, who

8

removed medially exposed sutures from her eye. Id. at 314–15.

9

On January 4, 2010, Plaintiff followed-up with Dr. Sato regarding the exposed

10

suture removal. Id. at 312–13. Dr. Sato’s notes were otherwise unremarkable. AR at

11

312–13. On January 12, 2010, Plaintiff returned to Dr. Sato for a follow-up post suture

12

removal. Id. at 310–11. Plaintiff reported some redness, no change, no pain, no irritation

13

currently, but had experienced “a little” scratchiness, small migraines and a feeling of

14

“pressure.” Id. at 310. Dr. Sato ordered baseline testing. Id. at 311. On January 15,

15

2010, Plaintiff was seen by NP McLeod to review her laboratory results. Id. at 336–39.

16

NP McLeod assessed diabetes and cough, referring Plaintiff to diabetic education and to

17

an ENT consult. AR at 338–39. NP McLeod prescribed Metformin and Albuterol. Id. at

18

339. On January 23, 2010, Plaintiff again followed-up with Dr. Sato. Id. at 308–09.

19

Plaintiff reported feeling an irritation, possibly a suture, without pain. Id. at 308. Dr.

20

Sato noted a sub-conjuntival cyst, which he removed and cauterized in the office. Id. at

21

309. On January 28, 2010, Plaintiff returned to Dr. Sato post cyst removal. AR at 278–

22

79. Some continued redness, but also improvement were noted; however, Plaintiff had to

23

leave after initial intake. Id. at 276, 278. On January 29, 2010, Plaintiff followed up with

24

NP McLeod regarding her diabetes. Id. at 340–41. Plaintiff had no questions regarding

25

diabetes; however, complained of her face feeling hot, feeling like she has a cold without

26

symptoms, no energy, difficulty stopping bleeding after stepping on a tack, and

27

intermittent paresthesias in both legs and feet. Id. NP McLeod’s examination of Plaintiff

28

was unremarkable. Id. at 341.

- 15 -

1

On February 1, 2010, Plaintiff returned to Dr. Sato to complete her follow-up post

2

cyst removal. AR at 276–77. Dr. Sato noted that Plaintiff was “finally doing well[,]”

3

with no significant issues at the time of the appointment. Id. at 277. On February 5,

4

2010, Plaintiff was seen by A. J. Emami, M.D., FACS at Valley ENT, upon referral by

5

NP McLeod. Id. at 251. Dr. Emami reported that Plaintiff “had a significant degree of

6

problems with chronic cough for the last two years.” Id. Dr. Emami further noted that

7

she had “tried all types of allergy medications as well as omeprazole and cough syrup

8

without any significant improvement.” Id. Dr. Emami also noted that Plaintiff had some

9

shortness of breath, had been on multiple different inhalers, as well as allergy shots. AR

10

at 251. Dr. Emami’s examination of Plaintiff was unremarkable, and he noted that there

11

was no “need for any significant ENT intervention[.]” Id. On February 23, 2010,

12

Plaintiff again followed-up with Dr. Sato. Id. at 272–75, 320–27. Plaintiff reported her

13

right eye was drifting more when tired, and that she was experiencing an increased

14

pressure on the eye. Id. at 272, 274. Dr. Sato also performed glaucoma screening tests in

15

light of Plaintiff’s risk. Id. at 272, 320–27. Dr. Sato noted that Plaintiff did not have

16

glaucoma, and here screening tests were stable. AR at 272.

17

On March 3, 2010, Plaintiff followed-up with Dr. LaHood. Id. at 254. Plaintiff

18

reported “occasional exacerbations with coughing and mild postnasal drip and

19

congestion.” Id. Dr. LaHood’s physical examination of Plaintiff was unremarkable, and

20

he noted his impressions of “allergic rhinitis, allergic conjunctivitis, and asthma.” Id.

21

Dr. LaHood further noted that Plaintiff “had not improvement on the current

22

medications[,] . . . [and that she] did not tolerate immunotherapy secondary to recurrent

23

reactions. Id. Dr. LaHood changed Plaintiff’s prescriptions, and sent “lab work for a

24

valley fever serology work-up.” AR at 254

25

On April 21, 2010, Plaintiff returned to Dr. Sato for a follow-up. Id. at 270–71.

26

Plaintiff complained of continued eye pressure, as well as feeling a little drifting. Id. at

27

270. Examination of Plaintiff was otherwise unremarkable, and she was given another

28

prescription. Id. at 270–71.

- 16 -

1

On May 20, 2010, Plaintiff followed up with NP McLeod regarding her diabetes

2

and to discuss weight loss issues. Id. at 342–46. NP McLeod noted that Plaintiff had

3

recently gained custody of her niece and her niece’s three (3) month old son, but her

4

niece had run away leaving Plaintiff with the baby. Id. at 342. NP McLeod noted that

5

Plaintiff was positive for chills and fatigue, post nasal drip, and an intermittent cough.

6

AR at 343. NP McLeod’s physical examination of Plaintiff was otherwise unremarkable.

7

Id. at 344.

8

On June 12, 2010, Plaintiff was seen by Dr. Sato on an emergency basis. Id. at

9

267–69. Plaintiff reported straining of the right eye, continuous headaches, pressure

10

behind both eyes, and trouble with distance visual acuity.

11

examination, Dr. Sato recommended convergence exercises to improve Plaintiff’s

12

intermittent exotropia. Id. at 267, 269.

Id. at 267–68.

After

13

On September 2, 2010, Plaintiff was seen by Pierre Sakali, M.D. regarding her

14

“shortness of breath and mild coughing.” AR at 354–56. Plaintiff reported that she “had

15

a lot of stress over the last few months and [was] wondering if anxiety could be triggering

16

her symptoms.” Id. at 354. Dr. Sakali’s review of Plaintiff’s systems was unremarkable,

17

and physical examination showed “mild nasal turbinate enlargement, postnasal drip, and

18

end-expiratory wheezing with no rhonchi.”

19

“asthma, a chronic cough, allergic rhinitis, allergic conjunctivitis, and possible anxiety.”

20

Id. Dr. Sakali performed a pulmonary function test, which was in the normal range. Id.

21

Dr. Sakali increased Plaintiff’s Advair HFA prescription, and advised her to speak with

22

NP McLeod regarding “the possibility of evaluation and treatment of anxiety and

23

depression.” AR at 354. On the same date, Plaintiff followed up with NP McLeod

24

regarding her diabetes mellitus. Id. at 347–52. Plaintiff complained of feeling short of

25

breath, and reported that her allergist told her that she may be having an anxiety attack.

26

Id. at 347. Plaintiff further reported that her shortness of breath began on the day of her

27

brother’s funeral. Id. Plaintiff also complained of intermittent lightheadedness with

28

coughing and sore throat. Id. Plaintiff indicated that she was “going to the gym up to 4x

- 17 -

Id.

Dr. Sakali’s impression included

1

weekly for 2 hours[,] [but] [n]o weight loss, and she is still very tired.” AR at 347. NP

2

McLeod’s physical examination of Plaintiff was generally unremarkable, but noted small

3

amounts of exudate on both tonsils, plus post nasal drip. Id. at 349. NP McLeod ordered

4

additional labs, and noted that Plaintiff declined referral to behavioral health or grief

5

counseling. Id. at 351.

6

On February 25, 2011, Plaintiff had a chest x-ray due to “[a]sthma, unspecified

7

respiratory abnormality, [and] acute bronchospasm.” Id. at 391. Gary Podolny, M.D.

8

read the films and found no active cardiopulmonary disease. Id. Additionally, Dr.

9

Podolny compared the films to a March 12, 2009 film, and found no change. AR at 391.

10

On May 10, 2011, Plaintiff had a chest x-ray due to “[p]ersistent cough.” Id. at

11

390. Shaun P. McManimon, M.D. read the films, which were unremarkable. Id. at 390.

12

Dr. McManimon also compared the films with the February 25, 2011 films, and found

13

Plaintiff’s “[h]eart and mediastinum [were] within normal limits[,] [n]o focal infiltrate or

14

mass[,] [and] [n]o obvious bronchial wall thickening.” Id. On May 24, 2011, Plaintiff

15

was seen by NP McLeod regarding her diabetes mellitus. Id. at 377–89. Plaintiff

16

reported having trouble with eating, complained of fatigue, and stated that she was

17

walking a mile to a mile and a half per day. AR at 377. Plaintiff also complained of

18

postnasal drip, back pain when sitting, and persistent headaches.

19

McLeod’s physical examination was unremarkable, and Plaintiff did not exhibit any pain

20

upon palpation of her back or with leg extensions. Id. at 379. NP McLeod noted her leg

21

strength as 5/5 bilaterally. Id. NP McLeod ordered lab work to be done. See id. at 379–

22

89.

Id. at 378.

NP

23

On August 4, 2011, Plaintiff followed up with NP McLeod regarding her diabetes

24

mellitus. AR at 372–76. Plaintiff reported her walking had decreased to approximately a

25

quarter mile per day due to back pain. Id. at 372. Plaintiff further reported that she was

26

stretching her back on a ball. Id. Plaintiff also stated that she is “[u]nable to vacuum,

27

mop[,] and other home duties due to the pain.” Id. at 372. NP McLeod noted that a

28

January magnetic resonance imaging (“MRI”) showed “arthritic changes,” but was

- 18 -

1

otherwise unremarkable. Id. Plaintiff reported that she is fine until she bends, but then

2

cannot straighten. AR at 372. Plaintiff also reported physical therapy, ibuprofen, and

3

muscle relaxers were ineffective. Id. NP McLeod noted that Plaintiff was positive for

4

fatigue, but no other issues were noted. Id. at 374–75. On August 29, 2011, Plaintiff was

5

seen by Caryl S. Brailsford-Gorman, M.D. at Tucson Orthopaedic Institute. Id. at 395–

6

97. Plaintiff complained of back pain in her low back and buttocks, without a specific

7

inciting event. Id. at 395. Plaintiff reported aggravated symptoms when sitting; rising

8

from sitting; leaning forward; walking; lying on her side, stomach, and back; driving;

9

coughing; sneezing; bending forward; and sleeping. AR at 395. Plaintiff also reported

10

her pain between eight (8) and ten (10) out of ten (10). Id. Plaintiff stated that physical

11

therapy did not help, but made it worse.

12

unremarkable, but “[l]umbar range of motion shows 10° of flexion, 5° extension, limited

13

torsion with pain[,] . . . pain with all ranges[,] . . . [and] with palpation over her L5

14

segment and posterior superior iliac spine.” Id. at 396. MRI was noted to show “some

15

mild disc dehydration and annular tearing at L5-S1[,] [and] . . . a slight amount of facet

16

hypertrophy[,] [but] [o]therwise its normal.” Id. at 396, 400. Dr. Brailsford-Gorman

17

diagnosed low back pain and L5-S1 degenerative disease with a failure of conservative

18

therapy. AR at 396. Accordingly, Dr. Brailsford-Gorman recommended weight loss and

19

core strengthening, as well as epidural steroids. Id.

Id.

Physical examination was generally

20

On September 15, 2011, Plaintiff received an L5-S1 interlaminar epidural steroid

21

injections. Id. at 398–99. Scott Goorman, M.D. performed the procedure and reported

22

that Plaintiff tolerated the procedure well, and there were no immediate complications.

23

Id. at 398. On September 20, 2011, Plaintiff was seen by Albert Willison, ARNP for a

24

follow-up visit regarding her diabetes mellitus and to review laboratory testing. Id. at

25

423–32.

26

prescribed, she was not monitoring her blood pressure or home glucose, watching her

27

diet, or exercising. AR at 423. NP Willison reduced Plaintiff’s B12 supplement, and

28

noted that her Hgb A1c was high, but much improved, so recommended that she continue

NP Willison reported that although Plaintiff was taking medications as

- 19 -

1

with her diet. Id. at 423, 426. NP Willison also prescribed codeine and baclofen due to

2

Plaintiff’s complaint of increased back pain. Id. NP Willison’s physical examination

3

was otherwise unremarkable. Id. at 425.

4

On October 5, 2011, Plaintiff followed up with NP Willison regarding her lumbar

5

back pain, diabetes mellitus, obesity, and asthma. Id. at 419–22. Plaintiff described her

6

lower back pain as five (5) out of ten (10), with ten (10) being the worst possible pain.

7

AR at 421. NP Willison’s physical examination of Plaintiff was other unremarkable. Id.

8

Plaintiff was advised to increase intake of fluids, and prescribed phentermine for weight

9

loss. Id. at 422. On October 18, 2011, Plaintiff returned to Dr. Brailsford-Gorman for a

10

recheck post lumbar epidural steroid. Id. at 433–34. Plaintiff reported her symptoms

11

were generally improved, without new symptoms; however, she further reported

12

suffering from significant pain at the time of the appointment. Id. at 433. Dr. Brailsford-

13

Gorman’s physically examination indicated sensory decrease distally; tenderness in the

14

posterior iliac spine, left greater than right; range of motion decrease with side bending

15

and extension, which increased Plaintiff’s pain, especially on the left.

16

Plaintiff’s pain was worse at L5-S1 paraspinal. Id. Dr. Brailsford-Gorman recommended

17

a trial of L5-S1 bilateral facet blocks. Id. at 434.

AR at 433.

18

On November 5, 2011, Plaintiff returned to see NP Willison for a follow-up visit

19

regarding her lumbar back pain, diabetes mellitus, obesity, and asthma. Id. at 415–18.

20

Plaintiff reported having an anaphylactic reaction to the phentermine, and as such

21

discontinued and withdrew from the clinic.

22

examination of Plaintiff was unremarkable, except for her report of lumbar pain

23

continuing at five (5) out of ten (10). AR at 417.

Id. at 415.

NP Willison’s physical

24

On May 16, 2012, Plaintiff returned to Dr. Brailsford-Gorman regarding her

25

bilateral lumbar spine pain. Id. at 435–37. Plaintiff scored her pain as seven (7) out of

26

ten (10). Id. at 435. Plaintiff further reported that she was trying to exercise more,

27

working out at a gym. Id. at 435. Dr. Brailsford-Gorman’s physical examination of

28

Plaintiff was unremarkable, except tenderness at L4/L5 and L5/S1; restricted and painful

- 20 -

1

extension; and rotation to the left and right were also restricted and painful. Id. at 436–

2

37. Dr. Brailsford-Gorman further reported a negative straight leg raise test. AR at 437.

3

Dr. Brailsford-Gorman recommended epidural steroid injections and facets L4/L5 and

4

L5/S1. Id.

5

On June 14, 2012, NP McLeod completed a Physical Residual Functional

6

Capacity Assessment (“RFC”) for Plaintiff. Id. at 440. NP McLeod opined that Plaintiff

7

could stand during an eight (8) hour day for two (2) hours or less; that she could sit for

8

fifteen (15) to thirty (30) minutes or less at one time without needing to change position;

9

and could walk less than one (1) block or less before needing to stop. Id. NP McLeod

10

also opined that she could never lift and carry anything above ten (10) pounds. Id. NP

11

McLeod limited Plaintiff to occasional reaching, meaning two (2) hours or less; and

12

frequent, meaning between two (2) and six (6) hours per day, feeling, fingering, handling,

13

and grasping. AR at 440. NP McLeod also stated that Plaintiff’s limitations included a

14

requirement to lie down during the day, as well as alternate sitting and standing every

15

hour. Id. NP McLeod also opined that Plaintiff would miss more than five (5) days per

16

month. Id. On June 19, 2012, Dr. Goorman performed bilateral facet blocks at L4/L5

17

and L5/S1 under fluoroscopic guidance.

18

included

19

radiculopathy, [and] [f]acet [s]yndrome[.]”

20

Plaintiff tolerated the procedure well without immediate complications. AR at 438.

“[d]ebilitating

low

back

Id. at 438–39.

pain,

Dr. Goorman’s diagnoses

[l]umbosacral
Id. at 438.

spondylosis,

[l]umbar

Dr. Goorman reported that

21

On July 17, 2012, Plaintiff followed up with Dr. Brailsford-Gorman. Id. at 441–

22

43. Plaintiff described her back pain as burning, as well as radiating to and throbbing in

23

her left thigh. Id. at 441. Plaintiff stated that facet blocks were not effective, and

24

epidural steroid injections helped for approximately one (1) month. Id. at 441. Dr.

25

Brailsford-Gorman noted spasms in Plaintiff’s upper back, and that she was

26

uncomfortable with an antalgic gait. Id. at 442. Dr. Brailsford-Gorman noted restricted

27

and painful flexion, extension, and rotation of the lumbar/sacral spine. AR at 443. Dr.

28

Brailsford-Gorman further reported a positive Stork test, positive Trendelenburg’s test,

- 21 -

1

and right sacroiliac less mobile, but negative straight leg raise on the right and left. Id.

2

Dr. Brailsford-Gorman assessed a sacroiliac region sprain, lumbar disc degeneration, and

3

lumbar spondylosis. Id. On July 26, 2012, Plaintiff had an MRI of her sacrum. Id. at

4

450. Taylor P. Chen, M.D. reported no abnormality was evident. Id. On July 31, 2012,

5

Plaintiff returned to Dr. Brailsford-Gorman for a discussion regarding the results of

6

diagnostic testing. AR at 444–46. Plaintiff reported a current pain level of nine (9) out

7

of ten (10). Id. at 444. Dr. Brailsford-Gorman reported that she was unable to palpate

8

Plaintiff’s lumbar/sacral spine due to pain behaviors; flexion, extension, and rotation to

9

both the right and left, were restricted and painful; equivocal Stork test; equivocal

10

Trendelenburg’s test; and negative straight leg raise on the right and left. Id. at 446. Dr.

11

Brailsford-Gorman opined that the spine clinic did not have anything further to offer

12

Plaintiff, because she did not benefit from injection, and her diagnostic studies do not

13

suggest that there is a surgical treatment. Id. at 446.

14

On November 28, 2012, Plaintiff was seen by Dr. Brailsford-Gorman complaining

15

of lower back pain bilaterally, radiating into her buttocks, and cramping in her calves. Id.

16

at 447–49. Plaintiff also complained of arm pain radiating into her shoulderblades. AR

17

at 447, 449. Plaintiff stated that her primary care physician sent her back for injections.

18

Id. at 447. Dr. Brailsford-Gorman reported that Plaintiff appeared uncomfortable, and an

19

antalgic gait was observed. Id. at 449. Dr. Brailsford-Gorman further reported that

20

although Plaintiff’s straight leg raise was negative bilaterally, her Trendelenburg test and

21

SI compression test were positive bilaterally, and tenderness was documented at the

22

greater trochanter and bursa bilaterally, the proximal iliotibial band bilaterally, and

23

sacroiliac joint bilaterally. Id. Dr. Brailsford-Gorman opined that some of Plaintiff’s

24

symptoms were neuropathic, as well as musculoskeletal. Id.

25

On December 12, 2012, Plaintiff underwent nerve conduction velocity (“NCV”)

26

and electromyography (“EMG”) tests. AR at 451. Eugene Y. Mar, M.D. reported that all

27

nerve conduction studies were within normal limits, and all examined muscles showed no

28

evidence of denervation. Id.

- 22 -

1

b. Examining physicians

2

On October 5, 2010, Jeri B. Hassman, M.D. examined Plaintiff at the request of

3

the Arizona Department of Economic Security (“AZDES”). AR at 357–64. Dr. Hassman

4

noted Plaintiff’s chief complaints as asthma, allergies, and eye problems. Id. at 357. Dr.

5

Hassman summarized Plaintiff’s medical records that she had reviewed regarding her eye

6

surgeries and visit with the ENT specialist. Id. at 357–58. Dr. Hassman does not appear

7

to have reviewed Plaintiff’s other medical records. See id. at 357–58. Dr. Hassman’s

8

review of Plaintiff’s systems indicated occasional headaches and low back pain, but no

9

neck or mid-back pain. Id. at 358. Plaintiff also complained of occasional abdominal

10

pain, but no nausea, vomiting, constipation, or diarrhea. AR at 358. Plaintiff stated that

11

she had occasional double vision, although it had improved since the corrective surgery;

12

however, she stated that she could not afford the $500.00 necessary for glasses. Id.

13

Plaintiff denied chest or rib pain; dizziness; confusion; decreased memory; fatigue;

14

depression; anxiety; or numbness or tingling of her arms, hands, or fingers or legs, feet,

15

or toes. Id. at 358–59. Plaintiff did complain of occasional shortness of breath and

16

frequent coughing. Id. at 358. Dr. Hassman’s physical examination of Plaintiff was

17

generally unremarkable, noting normal ambulation without any pain, normal heel strike,

18

foot flat and heel off, and no limp. Id. at 359. Dr. Hassman reported that Plaintiff was

19

able to stand and walk on her heels and on her toes, but refused trying to hop on either

20

foot due to low back pain. AR at 359. Dr. Hassman further reported that Plaintiff was

21

able to bend at the waist and knees, and pick up something from the floor, as well as

22

kneel down on either knee and get up independently. Id. Dr. Hassman also reported that

23

Plaintiff was independent in dressing and undressing, and also in getting on and off the

24

examining table and in and out of the chair. Id. Dr. Hassman noted that Plaintiff could

25

be heard coughing while in the waiting room, and she coughed “at least five or 10 times

26

during the physical examination.” Id. Dr. Hassman noted that Plaintiff indicated that she

27

never coughed as much in a doctor’s office as she did at home. Id. Dr. Hassman opined

28

that Plaintiff’s cough sounded benign, and was nonproductive. AR at 359. Dr. Hassman

- 23 -

1

indicated that Plaintiff’s lungs were clear, although trying to take a deep breath caused

2

Plaintiff to begin coughing. Id. Dr. Hassman reported patches of eczema on Plaintiff’s

3

left wrist and neck. Id. Examination of Plaintiff’s upper extremities was also normal. Id.

4

Dr. Hassman further reported that examination of Plaintiff’s thoracic and lumbar spine

5

did not indicate muscle spasm or hypertonicity of the paraspinal muscles, and Plaintiff

6

had a full range of motion of the lumbar spine without pain, and straight leg raising test

7

was negative bilaterally. Id. Examination of Plaintiff’s lower extremities was also

8

normal. AR at 360. Dr. Hassman’s diagnoses included asthma and allergies resulting in

9

persistent and frequent coughing which was unresponsive to treatment with inhalers,

10

allergy shots, and other cough medications; morbid obesity; Type 2 diabetes mellitus; and

11

previous history of medial rectus weakness in both eyes, with rare episodes of double

12

vision, but continued pain in her right eye. Id. Dr. Hassman also completed a Medical

13

Source Statement of Ability to Do Work-Related Activities (Physical) regarding Plaintiff.

14

Id. at 360–64. Dr. Hassman opined that Plaintiff did not have any restrictions in lifting or

15

carrying. Id. at 361. Dr. Hassman further opined that Plaintiff was limited in standing

16

and/or walking to between six (6) and eight (8) hours in an eight (8) hour day. Id. Dr.

17

Hassman also found Plaintiff did not have any limitations on sitting. Id. at 362. Dr.

18

Hassman opined that Plaintiff was unlimited in seeing, hearing, and speaking, as well as

19

in reaching, handling, fingering, and feeling. Id. Dr. Hassman indicated that Plaintiff

20

could occasionally climb ramps, stairs, ladder, rope, and scaffolds; stoop; kneel; crouch;

21

and crawl. Id. Dr. Hassman also noted that Plaintiff was restricted in working around

22

heights; extremes in temperature; chemicals; and dust, fumes, or gases. Id. at 362–63.

23

On October 28, 2010, Charles S. Gannon, M.D. examined Plaintiff at the request

24

of AZDES. Id. at 365–68. Dr. Gannon noted normal pupillary reactions and internal

25

examination. AR at 365. Dr. Gannon attributed Plaintiff’s vision impairment to a small

26

refractive error and intermittent exotropia.

27

recommendations were necessary at the time. Id. at 366. Dr. Gannon noted that Plaintiff

28

did not have any noticeable problem ambulating due to her vision. Id. Dr. Gannon

- 24 -

Id.

Dr. Gannon opined that no

1

reported that his findings were consistent with previous findings, and that Plaintiff’s color

2

vision was normal, and peripheral fields were within normal limits. Id.

3

c. Nonexamining physicians

4

State agency physicians reviewed Plaintiff’s medical records at both the initial

5

level and on reconsideration. Marilyn Orenstein, M.D. reviewed Plaintiff’s medical

6

records at the initial level and gave great weight to the examining physicians. See AR at

7

52–64. Dr. Orenstein found Plaintiff to be partially credible, pointing to her alleged non-

8

compliance. Id. at 59. Dr. Orenstein opined that Plaintiff had the following exertional

9

limitations: lift or carry fifty (50) pounds occasionally; lift or carry twenty-five (25)

10

frequently; stand and/or walk for approximately six (6) hours in an eight (8) hour

11

workday; sit with normal breaks for approximately six (6) hours in an eight (8) hour

12

workday; and otherwise unlimited in pushing or pulling. Id. at 60. Dr. Orenstein further

13

opined that Plaintiff’s postural limitations included the ability to frequently climb ramps

14

and stairs; balance; stoop; kneel; crouch or crawl; and never climb ladders, ropes, and

15

scaffolds. Id. Dr. Orenstein noted that Plaintiff did not have and manipulative, visual or

16

communicative limitations, but had environmental limitations of requiring avoiding

17

concentrated exposure to extreme cold and heat, vibration, fumes, odors, dusts, gases, and

18

poor ventilation.

19

moderate exposure to hazards, but was unlimited regarding wetness, humidity, and noise.

20

AR at 60.

21

exacerbations of asthma. Id. at 62.

22
23

Id.

Dr. Orenstein further noted that Plaintiff should avoid even

Dr. Orenstein also noted that Plaintiff had never been hospitalized for

Upon reconsideration, Robert Hirsch, M.D. reviewed Plaintiff’s medical records.
Id. at 65–77. Dr. Hirsch’s RFC was identical to that of Dr. Orenstein. See id. at 72–74.

24
25
26

II.

STANDARD OF REVIEW
The factual findings of the Commissioner shall be conclusive so long as they are

27

based upon substantial evidence and there is no legal error.

28

1383(c)(3); Tommasetti v. Astrue, 533 F.3d 1035, 1038 (9th Cir. 2008). This Court may

- 25 -

42 U.S.C. §§ 405(g),

1

“set aside the Commissioner’s denial of disability insurance benefits when the ALJ’s

2

findings are based on legal error or are not supported by substantial evidence in the

3

record as a whole.” Tackett v. Apfel, 180 F.3d 1094, 1097 (9th Cir. 1999) (citations

4

omitted); see also Treichler v. Comm’r of Soc. Sec. Admin., 775 F.3d 1090, 1098 (9th

5

Cir. 2014).

6

Substantial evidence is “‘more than a mere scintilla[,] but not necessarily a

7

preponderance.’” Tommasetti, 533 F.3d at 1038 (quoting Connett v. Barnhart, 340 F.3d

8

871, 873 (9th Cir. 2003)); see also Garrison v. Colvin, 759 F.3d 995, 1009 (9th Cir.

9

2014). Further, substantial evidence is “such relevant evidence as a reasonable mind

10

might accept as adequate to support a conclusion.” Parra v. Astrue, 481 F.3d 742, 746

11

(9th Cir. 2007). Where “the evidence can support either outcome, the court may not

12

substitute its judgment for that of the ALJ.” Tackett, 180 F.3d at 1098 (citing Matney v.

13

Sullivan, 981 F.2d 1016, 1019 (9th Cir. 1992)); see also Massachi v. Astrue, 486 F.3d

14

1149, 1152 (9th Cir. 2007). Moreover, the court may not focus on an isolated piece of

15

supporting evidence, rather it must consider the entirety of the record weighing both

16

evidence that supports as well as that which detracts from the Secretary’s conclusion.

17

Tackett, 180 F.3d at 1098 (citations omitted).

18
19

III.

ANALYSIS

20

A.

21

The Commissioner follows a five-step sequential evaluation process to assess

22

whether a claimant is disabled. 20 C.F.R. § 404.1520(a)(4). This process is defined as

23

follows: Step one asks is the claimant “doing substantial gainful activity[?]” If yes, the

24

claimant is not disabled; step two considers if the claimant has a “severe medically

25

determinable physical or mental impairment[.]” If not, the claimant is not disabled; step

26

three determines whether the claimant’s impairments or combination thereof meet or

27

equal an impairment listed in 20 C.F.R. Pt. 404, Subpt. P, App.1. If not, the claimant is

28

not disabled; step four considers the claimant’s residual functional capacity and past

The Five-Step Evaluation

- 26 -

1

relevant work. If claimant can still do past relevant work, then he or she is not disabled;

2

step five assesses the claimant’s residual functional capacity, age, education, and work

3

experience. If it is determined that the claimant can make an adjustment to other work,

4

then he or she is not disabled. 20 C.F.R. § 404.1520(a)(4)(i)-(v).

5

In the instant case, the ALJ found that Plaintiff met the insured status requirements

6

of the Social Security Act through March 31, 2013, and was not engaged in substantial

7

gainful activity since her alleged onset date of November 2, 2010. AR at 15. At step two

8

of the sequential evaluation, the ALJ found that “[t]he claimant has the following severe

9

impairments: chronic back pain, diabetes, cough, obesity, asthma[,] and status post left

10

knee surgery (20 CFR 404.1520(c)).” Id. At step three, the ALJ found that “[t]he

11

claimant does not have an impairment or combination of impairments that meets or

12

medically equals the severity of one of the listed impairments in 20 CFR Part 404,

13

Subpart P, Appendix 1 (20 CFR 404.1520(d), 404.1525, and 404.1526).” Id. at 16. Prior

14

to step four and “[a]fter careful consideration of the entire record,” the ALJ determined

15

that “the claimant has the residual functional capacity to perform medium work as

16

defined in 20 CFR 404.1567(c) specifically as follows: the claimant can lift and carry

17

fifty pounds occasionally and twenty-five pounds frequently; the claimant can stand

18

and/or walk six hours in an eight-hour workday and sit for six hours in an eight-hour

19

workday; the claimant cannot climb ladders, ropes or scaffolds; the claimant can

20

frequently climb ramps and stairs and balance, stoop, kneel, crouch and crawl; the

21

claimant must avoid concentrated exposure to extreme heat, cold, vibration, fumes, odors,

22

dust, gases, poor ventilation and hazards, and the claimant must avoid working with the

23

public.” Id. At step four, the ALJ found that “[t]he claimant is unable to perform any

24

past relevant work (20 CFR 404.1565).” Id. at 19. At step five, the ALJ considered “the

25

claimant’s age, education, work experience, and residual functional capacity, [and found]

26

there are jobs that exist in significant numbers in the national economy that the claimant

27

can perform (20 CFR 404.1569 and 404.1569(a)).” AR at 20. Accordingly, the ALJ

28

determined that Plaintiff was not disabled. Id. at 21.

- 27 -

1

Plaintiff asserts that the ALJ erred in her consideration of substantial evidence in

2

the record regarding medical treatment and compliance, negatively impacting her

3

assessment of Plaintiff’s credibility; giving improper weight and consideration to reports

4

of Plaintiff’s activities of daily living; improperly giving significant weight to the

5

examining consultant’s opinion prior to the alleged onset date; and improperly weighing

6

the testimony of Nurse Practitioner Kathleen McLeod. Pl.’s Opening Br. (Doc. 17) at

7

11–17.

8
9

B.

Plaintiff’s Symptoms
1. Legal standard

10

“To determine whether a claimant’s testimony regarding subjective pain or

11

symptoms is credible, an ALJ must engage in a two-step analysis.” Lingenfelter v.

12

Astrue, 504 F.3d 1028, 1035–36 (9th Cir. 2007). First, “a claimant who alleges disability

13

based on subjective symptoms ‘must produce objective medical evidence of an

14

underlying impairment which could reasonably be expected to produce the pain or other

15

symptoms alleged[.]’”

16

(quoting Bunnell v. Sullivan, 947 F.2d 341, 344 (9th Cir. 1991) (en banc) (internal

17

quotations omitted)); see also Ghanim v. Colvin, 763 F.3d 1154, 1163 (9th Cir. 2014).

18

Further, “the claimant need not show that her impairment could reasonably be expected

19

to cause the severity of the symptom she has alleged; she need only show that it could

20

reasonably have caused some degree of the symptom.”

21

(citations omitted); see also Trevizo v. Berryhill, 871 F.3d 664, 678 (9th Cir. 2017). “Nor

22

must a claimant produce ‘objective medical evidence of the pain or fatigue itself, or the

23

severity thereof.’” Garrison v. Colvin, 759 F.3d 995, 1014 (9th Cir. 2014) (quoting

24

Smolen, 80 F.3d at 1282). “[I]f the claimant meets this first test, and there is no evidence

25

of malingering, ‘the ALJ can reject the claimant’s testimony about the severity of her

26

symptoms only by offering specific, clear and convincing reasons for doing so.’”

27

Lingenfelter, 504 F.3d at 1036 (quoting Smolen, 80 F.3d at 1281); see also Burrell v.

28

Colvin, 775 F.3d 1133, 1137 (9th Cir. 2014) (rejecting the contention that the “clear and

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

- 28 -

Smolen, 80 F.3d at 1282

1

convincing” requirement had been excised by prior Ninth Circuit case law). “This is not

2

an easy requirement to meet: ‘The clear and convincing standard is the most demanding

3

required in Social Security cases.’” Garrison, 759 F.3d at 1015 (quoting Moore v.

4

Comm’r of Soc. Sec. Admin., 278 F.3d 920, 924 (9th Cir. 2002)).

5

“Factors that an ALJ may consider in weighing a claimant’s credibility include

6

reputation for truthfulness, inconsistencies in testimony or between testimony and

7

conduct, daily activities, and ‘unexplained, or inadequately explained, failure to seek

8

treatment or follow a prescribed course of treatment.’” Orn v. Astrue, 495 F.3d 625, 636

9

(9th Cir. 2007) (quoting Fair v. Bowen, 885 F.2d 597, 603 (9th Cir. 1989)); see also

10

Ghanim, 763 F.3d at 1163. The Ninth Circuit Court of Appeals has “repeatedly warned[,

11

however,] that ALJs must be especially cautious in concluding that daily activities are

12

inconsistent with testimony about pain, because impairments that would unquestionably

13

preclude work and all the pressures of a workplace environment will often be consistent

14

with doing more than merely resting in bed all day.” Garrison, 759 F.3d at 1016

15

(citations omitted).

16

claimants be utterly incapacitated to be eligible for benefits, and many home activities

17

may not be easily transferable to a work environment where it might be impossible to rest

18

periodically or take medication.” Smolen, 80 F.3d at 1287 n. 7 (citations omitted). The

19

Ninth Circuit Court of Appeals has noted:

Furthermore, “[t]he Social Security Act does not require that

23

The critical differences between activities of daily living and activities in a
full-time job are that a person has more flexibility in scheduling the former
than the latter, can get help from other persons . . . , and is not held to a
minimum standard of performance, as she would be by an employer. The
failure to recognize these differences is a recurrent, and deplorable, feature
of opinions by administrative law judges in social security disability cases.

24

Garrison, 759 F.3d at 1016 (quoting Bjornson v. Astrue, 671 F.3d 640, 647 (7th Cir.

25

2012)) (alterations in original). “While ALJs obviously must rely on examples to show

26

why they do not believe that a claimant is credible, the data points they choose must in

27

fact constitute examples of a broader development to satisfy the applicable ‘clear and

28

convincing’ standard.” Id. at 1018 (emphasis in original) (discussing mental health

20
21
22

- 29 -

1

records specifically). “Inconsistencies between a claimant’s testimony and the claimant’s

2

reported activities provide a valid reason for an adverse credibility determination.

3

Burrell, 775 F.3d at 1137 (citing Light v. Soc. Sec. Admin., 119 F.3d 789, 792 (9th Cir.

4

1997)).

5

2. ALJ findings

6

Here, the ALJ acknowledged the two-step process for assessing Plaintiff’s

7

symptom testimony. AR at 16. The ALJ then found “[a]fter careful consideration of the

8

evidence, the undersigned finds that the claimant’s medically determinable impairments

9

could reasonably be expected to cause some of the alleged symptoms; however, the

10

claimant’s statements concerning the intensity, persistence and limiting effects of these

11

symptoms are not credible to the extent those statements are inconsistent with the

12

residual functional capacity assessment herein.” Id. at 17. The ALJ went on to review

13

the medical record concluding “[t]he claimant’s subjective complaints are less than fully

14

credible and the objective medical evidence does not support the alleged severity of the

15

symptoms.” Id. at 19.

16

As the Ninth Circuit Court of Appeals has recently observed:

17

The ALJ took a backward approach to determining [Plaintiff’s] credibility.
[She] found that [Plaintiff’s] testimony was not credible “to the extent [it
was] inconsistent with the . . . [RFC].” However, and ALJ must take into
account a claimant’s symptom testimony when determining the RFC.
Laborin v. Berryhill, 867 F.3d 1151, 1154 (9th Cir. 2017); Trevizo v.
Berryhill, 862 F.3d 987, 1000 n.6 (9th Cir. 2017). To determine the RFC
first and then the claimant’s testimony is to “put[] the cart before the
horse.” Laborin, 867 F.3d at 1154. The ALJ’s approach is “inconsistent
with the Social Security Act and should not be used in disability decisions.”
Id. at 1153; see also Trevizo, 862 F.3d at 1000 n.6. Though this may not
itself be reversible error, when taken together with the ALJ’s failure to
provide “clear and convincing” reasons for rejecting [Plaintiff’s] testimony,
we cannot conclude anything other than that the ALJ’s failure to credit
[Plaintiff’s] testimony was error.

18
19
20
21
22
23
24
25
26
27
28

Revels v. Berryhill, 874 F.3d 648, 666 (9th Cir. 2017) (emphasis in original) (alterations
4–6 in original). Moreover, “the claimant need not show that her impairment could
reasonably be expected to cause the severity of the symptom she has alleged; she need
- 30 -

1

only show that it could reasonably have caused some degree of the symptom.” Smolen,

2

80 F.3d at 1282 (citations omitted); see also Trevizo v. Berryhill, 871 F.3d 664, 678 (9th

3

Cir. 2017). “Nor must a claimant produce ‘objective medical evidence of the pain or

4

fatigue itself, or the severity thereof.’” Garrison v. Colvin, 759 F.3d 995, 1014 (9th Cir.

5

2014) (quoting Smolen, 80 F.3d at 1282). “[A]n ALJ may not disregard [a claimant’s

6

testimony] solely because it is not substantiated by objective medical evidence[.]”

7

Trevizo, 871 F.3d at 679 (citations omitted). The ALJ’s finding that objective medical

8

evidence did not support the alleged severity of the symptoms is inconsistent with

9

Plaintiff’s burden.

10

a. Activities of daily living

11

The ALJ is reminded that “[t]he Social Security Act does not require that

12

claimants be utterly incapacitated to be eligible for benefits, and many home activities

13

may not be easily transferable to a work environment where it might be impossible to rest

14

periodically or take medication.”

15

Although Plaintiff may be able to manage living on her own and keep her children fed,

16

clothed, and medicated, this does not necessarily equate with the ability to work. Trevizo,

17

871 F.3d at 682 (“[T]he mere fact that she cares for small children does not constitute an

18

adequately specific conflict with her reported limitations.”); Garrison, 759 F.3d at 1016

19

(impairments that would preclude work are often consistent with doing more than

20

spending each day in bed). Furthermore, Plaintiff consistently testified that her family

21

assists her with her children and housework. AR at 38, 180, 200. The ALJ also found

22

Plaintiff’s adoption of a newborn inconsistent with her disability. Id. at 17. The ALJ

23

ignored the fact that Plaintiff told her primary care provider that she had gained custody

24

of her seventeen year old niece and her niece’s three month old son, but her niece had run

25

away leaving Plaintiff with the baby. Id. at 342. Additionally, Plaintiff testified that her

26

driving is limited, as is her ability to perform tasks such as grocery shopping. Id. at 35,

27

181, 201. The evidence does not support the ALJ’s finding that “the claimant has

28

engaged in a somewhat normal level of daily activity and interaction[,] . . . [and] [her]

Smolen, 80 F.3d at 1287 n.7 (citations omitted).

- 31 -

1

ability to participate in such activities undermined the credibility of the claimant’s

2

allegations of disabling functional limitations.” Id. at 17.

3

b. Treatment compliance

4

“Failure to follow prescribed treatment may cast doubt on the sincerity of the

5

claimant’s pain testimony.” Trevizo, 871 F.3d at 680 (quotations and citations omitted).

6

The ALJ stated that “[i]t was noted that the claimant did not take her medications as

7

prescribes [sic] or monitor her blood sugar levels[,] [and] [t]he claimant was also not

8

compliant with her diet and exercise program.” AR at 17. The ALJ misstated the record.

9

NP Willison plainly stated that “[t]he patient is taking medications as prescribed.” Id.

10

at 423 (emphasis added). He further noted that “[h]er Hgb A1c was high but much

11

improved so we will continue with same diet.” Id. (emphasis added). Moreover, when

12

NP Willison prescribed Plaintiff phentermine for weight loss, she suffered an

13

anaphylactic reaction to the drug. Id. at 415, 417, 422. As such, the ALJ’s findings

14

regarding non-compliance are not supported by the record.

15

c. Conservative treatment

16

The ALJ noted that “[t]he medical evidence indicates the claimant received

17

routine conservative treatment for complaints of asthma, allergies and back pain[,] [and]

18

[t]he lack of more aggressive treatment or surgical intervention suggests the claimant’s

19

symptoms and limitations were not as severe as she alleged.” AR at 17.

20

conservative treatment is a proper reason to discount a claimant’s pain testimony.

21

Tommasetti v. Astrue, 533 F.3d 1035, 1039 (9th Cir. 2008) (citations omitted). Plaintiff

22

received allergy shots, which she had an adverse reaction to, for treatment of her

23

allergies; used multiple inhalers for treatment of her asthma; received epidural steroid

24

injections and facet blocks for her back pain when physical therapy and medication

25

failed; and was deemed not to be a candidate for surgical intervention. The ALJ failed to

26

explain how these treatments are “conservative” for Plaintiff’s diagnoses. The Ninth

27

Circuit Court of Appeals has “previously ‘doubt[ed] that epidural steroid shots to the

28

neck and lower back qualify as ‘conservative’ medical treatment.’” Revels, 874 F.3d at

- 32 -

Evidence of

1

667 (citing Garrison, 759 F.3d at 1015 n.20). As such, the Court finds that Plaintiff’s

2

treatment choices “do[] not constitute substantial evidence supporting a finding that

3

[Plaintiff’s] symptoms were not as severe as [she] testified, particularly in light of the

4

extensive medical record objectively verifying [her] claims.” Trevizo, 871 F.3d at 682.

5

d. ENT physician

6

The ALJ stated that a “doctor indicated that the claimant did not need ant [sic]

7

significant intervention from a specialist[,]” and relied on this finding to discredit

8

Plaintiff’s testimony. AR at 17. Dr. Emami, an ENT, noted that there was no “need for

9

any significant ENT intervention[.]” Id. at 251. It does not follow that because there was

10

no structural reason for Plaintiff’s cough, she is not credible. Plaintiff has an extensive

11

list of allergies which contributed to her symptoms.

12

support the ALJ’s finding.

13

Substantial evidence does not

e. Consultative Examiner

14

The ALJ noted that consultative examiner Dr. Hassman reported that Plaintiff’s

15

physical examination was unremarkable beyond her cough and patches of eczema. AR at

16

18. The ALJ further noted Dr. Hassman’s findings that “[a] neurological examination

17

showed normal motor strength, sensation, and reflexes.” Id. As an initial matter, Dr.

18

Hassman examined Plaintiff prior to her alleged onset date, and before her back pain had

19

significantly progressed. Additionally, Dr. Hassman noted that Plaintiff could be heard

20

coughing in the waiting room, and coughed five (5) or ten (10) times during her

21

examination. Id. at 359. Dr. Hassman also appears to have reviewed only a subset of

22

Plaintiff’s medical records. Id. at 357–58. As such, Dr. Hassman’s notes from a single

23

meeting are insufficient to disregard Plaintiff’s testimony. See Trevizo, 871 F.3d at 680

24

(“clear and convincing” reasons required for crediting the opinion of an examining doctor

25

over primary treating physician and claimant’s testimony).

26

f. Conclusion

27

Based upon the foregoing, the Court finds that the ALJ failed to provide specific,

28

clear and convincing reasons for discounting Plaintiff’s testimony which are supported by

- 33 -

1

substantial evidence in the record. See Lingenfelter, 504 F.3d at 1036; Tommasetti v.

2

Astrue, 533 F.3d 1035, 1040 (9th Cir. 2008).

3

C.

4

Plaintiff asserts that the ALJ improperly weighed NP McLeod’s opinion. Pl.’s

5

Opening Br. (Doc. 17) at 16–17. The ALJ stated that she considered the opinion of NP

6

McLeod, but “[b]ecause this opinion is not from an acceptable medical source, the

7

undersigned gives it less weight than other qualifying medical source opinions (20 CFR

8

404.1513(a)(e) and 416.913(a)(e)).” AR at 19. Without elaboration, the ALJ also found

9

NP McLeod’s opinion “inconsistent with the medical records and the claimant’s activities

10

Nurse Practitioner McLeod

of daily living.” Id. 19.

11

The Ninth Circuit Court of Appeals has opined that “[t]he Social Security

12

regulations provide an out-dated view that consider a nurse practitioner as an ‘other

13

source.’” Popa v. Berryhill, 872 F.3d 901, 907 (9th Cir. 2017). NP McLeod treated

14

Plaintiff at least eight (8) times over two (2) years.1 Furthermore, NP McLeod “was in a

15

unique position as a primary care provider, as she received reports from specialists and

16

had an overview of [Plaintiff’s] conditions.” Revels, 874 F.3d at 665 (citing 20 C.F.R. §

17

404.1527(c)(2)(ii)). Ninth Circuit “precedents require that the ALJ provide ‘germane

18

reasons’ to reject [NP McLeod’s] opinions. Popa, 872 F.3d at 907 (citing Molina v.

19

Astrue, 674 F.3d 1104, 1111 (9th Cir. 2012)). “The ALJ failed to provide ‘germane

20

reasons.’” Id. Because the Court will direct the ALJ to reassess her credibility findings

21

with regard to Plaintiff, it finds that it is appropriate to direct her to reconsider NP

22

McLeod’s statements in light of the new determination.

23

D.

24

“‘[T]he decision whether to remand the case for additional evidence or simply to

25

award benefits is within the discretion of the court.’” Rodriguez v. Bowen, 876 F.2d 759,

26

763 (9th Cir. 1989) (quoting Stone v. Heckler, 761 F.2d 530, 533 (9th Cir. 1985)).

Remand for Further Proceedings

27
1

28

NP McLeod’s completion of the RFC paperwork represents a ninth visit in two and half

years.

- 34 -

1

“Remand for further administrative proceedings is appropriate if enhancement of the

2

record would be useful.” Benecke v. Barnhart, 379 F.3d 587, 593 (9th Cir. 2004) (citing

3

Harman v. Apfel, 211 F.3d 1172, 1178 (9th Cir. 2000)). Conversely, remand for an award

4

of benefits is appropriate where:
(1) the ALJ failed to provide legally sufficient reasons for rejecting the
evidence; (2) there are no outstanding issues that must be resolved before a
determination of disability can be made; and (3) it is clear from the record
that the ALJ would be required to find the claimant disabled were such
evidence credited.

5
6
7
8
9
10
11
12
13
14

Benecke, 379 F.3d at 593 (citations omitted). Where the test is met, “we will not remand
solely to allow the ALJ to make specific findings. . . . Rather, we take the relevant
testimony to be established as true and remand for an award of benefits." Id. (citations
omitted); see also Lester v. Chater, 81 F.3d 821, 834 (9th Cir. 1995). “Even if those
requirements are met, though, we retain ‘flexibility’ in determining the appropriate
remedy.” Burrell v. Colvin, 775 F.3d 1133, 1141 (9th Cir. 2014).
Here, the ALJ committed legal error in rejecting Plaintiff’s symptom testimony,

15
16
17
18
19
20
21
22
23
24
25
26

and discounting Plaintiff’s treating provider’s opinion. The Court finds that remand on
an open record is appropriate in this case. The ALJ is instructed to reassess Plaintiff’s
symptom testimony, as well as reassess Plaintiff’s activities of daily living and the
limitations that they impose based on her revised analysis of Plaintiff’s symptoms. The
ALJ is also instructed to reassess NP McLeod’s opinions consistent with this Order. The
ALJ shall also consider any additional medical records that may be available. Finally,
reassessment of Plaintiff’s testimony may impact the VE testimony and require additional
inquiry. See Matthews v. Shalala, 10 F.3d 678, 681 (9th Cir. 1993) (“[i]f a vocational
expert’s hypothetical does not reflect all the claimant’s limitations, then the expert’s
testimony has no evidentiary value to support a finding that the claimant can perform jobs
in the national economy.” (internal quotation marks and citation omitted)).

27
28

V.

CONCLUSION
In light of the foregoing, the Court REVERSES the ALJ’s decision and the case is
- 35 -

1

REMANDED for further proceedings consistent with this decision.

2

Accordingly, IT IS HEREBY ORDERED that:

3

1)

Plaintiff’s Opening Brief (Doc. 17) is GRANTED;

4

2)

The Commissioner’s decision is REVERSED and REMANDED;

5

3)

Upon remand, the Appeals Council will remand the case back to the ALJ

6

on an open record; and

7

4)

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Dated this 26th day of March, 2018.

The Clerk of the Court shall enter judgment, and close its file in this matter.

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