Rogers v. Commissioner of Social Security Administration

Filing 23

ORDERED that the 1 Opening Brief filed by Johnathan Rogers is granted. The Commissioner's decision is REVERSED and REMANDED for calculation and award of benefits. The Clerk of Court shall enter judgment, and close its file in this matter. Signed by Magistrate Judge Bruce G Macdonald on 9/16/2019. (BAR)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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9 Johnathan Adam Rogers,
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No. CV-18-0260-TUC-BGM

Plaintiff,
ORDER

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12 Andrew M. Saul,1
Acting Commissioner of Social Security,
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Defendant.
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Currently pending before the Court is Plaintiff’s Opening Brief in Support of

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Vacature of the Decision of the Commissioner of Social Security on a Claim for a Period

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of Disability and Disability Insurance Benefits (Doc. 17). Defendant filed his Response

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Brief Requesting a Remand for Further Proceedings (“Response”) (Doc. 21), and Plaintiff

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filed his Reply (Doc. 22). Plaintiff brings this cause of action for review of the final

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

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United States Magistrate Judge has received the written consent of both parties, and

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

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Procedure.

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...

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...

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The Court takes judicial notice that Nancy A. Berryhill is no longer Acting Commissioner
of the Social Security Administration (“SSA”). The Court will substitute the new Commissioner
of the SSA, Thomas M. Saul, as Respondent pursuant to Rule 25(d) of the Federal Rules of Civil
Procedure. See also Fed. R. App. P. 43(c)(2).

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I.

BACKGROUND

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A.

Procedural History

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On January 21, 2015, Plaintiff filed a Title II application for Social Security

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Disability Insurance Benefits (“DIB”) alleging disability as of June 11, 2014 due to

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neuroma, post-traumatic stress disorder (“PTSD”), degenerative disc disease,

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hypertension, sleep apnea, and migraines. See Administrative Record (“AR”) at 14, 31,

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64–65, 71, 78–79, 82, 85–86, 90, 96, 181, 184, 242, 260.

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Administration (“SSA”) denied this application on June 8, 2015. Id. at 14, 64–77, 101–05.

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On July 7, 2015, Plaintiff filed a request for reconsideration, and on September 15, 2015,

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SSA denied Plaintiff’s application upon reconsideration. Id. at 14, 78–96, 106–09. On

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October 8, 2015, Plaintiff filed his request for hearing. Id. at 14, 110–11. On February 13,

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2017, a hearing was held before Administrative Law Judge (“ALJ”) MaryAnn

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Lunderman.2 Id. at 14, 29–63. On April 26, 2017, the ALJ issued an unfavorable decision.

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AR at 14–24. On April 27, 2017, Plaintiff requested review of the ALJ’s decision by the

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Appeals Council, and on October 25, 2017, review was denied. Id. at 1–3, 165–66. On

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May 22, 2018, Plaintiff filed this cause of action. Compl. (Doc. 1).

The Social Security

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B.

Factual History

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Plaintiff was thirty-seven (37) years old at the time of the administrative hearing

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and thirty-five (35) at the time of the alleged onset of his disability. AR at 14, 23, 31–32,

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64, 65, 71, 78–79, 86, 90, 94, 96, 167, 181, 184, 242, 260. Plaintiff obtained a high school

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diploma. Id. at 23, 35–36, 37–38, 71, 75, 77, 94, 96, 185. Prior to his alleged disability,

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Plaintiff worked in the Army as infantry, a welder, and as an allied trades specialist. Id. at

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185, 191, 224–31. Prior to the Army, Plaintiff worked in catering, as an automotive service

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technician, and construction foreperson. Id. at 38–39, 224–31.

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The ALJ states that the hearing occurred on February 13, 2017, which is the date reflected
in the notices of hearing sent to Plaintiff; however, the hearing transcript is dated March 13, 2017.
AR at 14, 29–63, 132, 139, 159, 161. The Court believes that the hearing occurred on February
13, 2017, because the Plaintiff indicated that he was thirty-seven (37) years old during the hearing.
Id. at 32.

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1. Plaintiff’s Testimony
a. Administrative Hearing

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At the administrative hearing, Plaintiff testified that he graduated from high school.

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AR at 35–36. Plaintiff further testified that after high school, he joined the military and

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was infantry, then a welder and machinist. Id. at 36. Plaintiff testified that prior to joining

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the Army, he worked in construction and as an automotive mechanic. Id. at 38–39.

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Plaintiff further testified that he is currently going to school on the GI bill for a welding

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degree. Id. at 36–38. Plaintiff also testified that he receives income from Veterans Affairs

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(“VA”) for a ninety (90) percent disability rating. Id. Plaintiff testified that the VA

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disability rating was for his PTSD, right shoulder, right foot, and implanted neuro

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stimulator. AR at 34.

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Plaintiff further testified that he is married with two children. Id. at 33. Plaintiff

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also testified that he was in the Army for eight (8) years and two days. Id. at 36. Plaintiff

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testified that he cannot handle large groups of people and generally has difficulty

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interacting with people. Id. at 39–40. Plaintiff further testified that loud noises trigger his

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PTSD and people make him very anxious. Id. at 40. Plaintiff also testified that he smokes

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approximately a half of a pack of cigarettes per day and does not drink alcohol or take

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illegal drugs or marijuana. AR at 40–41. Plaintiff noted that the only side effect of his

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medications is some erectile dysfunction. Id. at 40.

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Plaintiff testified that he can lift approximately twenty-five (25) to fifty (50) pounds.

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Id. at 41, 46. Plaintiff further testified that he needs to get up after approximately fifteen

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(15) to twenty (20) minutes of sitting, can walk about a block or block and a half, and can

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stand for approximately ten (10) minutes at a time. Id. at 41, 47, 52. Plaintiff also testified

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that when he is not at school he tries to help by taking the trash out daily, attempting to

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cook instant meals once or twice per week, occasionally doing dishes, and sweeping or

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mopping the floor. Id. at 41–42, 46–49. Plaintiff testified that he has a little hobby welder

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at the house but does not have other hobbies. AR at 41.

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Plaintiff testified that he requires accommodations at school due to his mental health

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issues. Id. at 42–44. Plaintiff explained that he sometimes need to leave the booth when

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welding due to frustration and needs to leave the classroom because of the number of

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people. Id. at 43–44. Plaintiff estimated that when he leaves to collect himself, he requires

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approximately five (5) to ten (10) minutes before being able to continue. Id. Plaintiff

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testified that this occurs approximately four (4) times per class. Id. Plaintiff further

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testified that his teachers give him additional time to take tests and weld, as well as seating

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him in an area that is more secluded. AR at 43–44. Plaintiff also testified that he does not

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talk to his class mates. Id. at 44.

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Plaintiff testified that his wife had been paid by the VA to be his family care giver,

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but he was not sure if she was still being paid or if the payments had stopped and might be

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restarted. Id. Plaintiff further testified that he does not have a driver’s license, because his

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wife and the VA social workers agreed that he should not drive. Id. at 45. Plaintiff further

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testified that he suffers from migraines and estimated that they occur once or twice per

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month. Id. Plaintiff explained that they last for a day and he has light and noise sensitivity.

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AR at 45. Plaintiff also testified that he has sleep difficulties including trouble falling and

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staying asleep, as well as nightmares. Id. at 45–46. Petitioner testified that he began

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sleeping in the recliner several months prior to the hearing. Id. at 46. Plaintiff further

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testified that he uses his cane all the time, which was recommended by his doctors. Id. at

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47. Plaintiff testified that he pets his animals, but his children feed and brush them. Id. at

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48. Plaintiff also testified that he is easily distracted by noises or side conversation when

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trying to interact with people. AR at 49. Plaintiff further described anxiety attacks when

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he has his back to a door. Id. Plaintiff testified that his wife manages his medications for

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him by setting them out each day, although his pain medication does not always last for

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the entire dosing schedule. Id. at 50–52.

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b. Administrative Forms
i. Function Report—Adult

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On May 6, 2015, Plaintiff completed a Function Report—Adult in this matter. AR

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183–90, 213–20. Plaintiff reported that he lived in a house with family. Id. at 213. Plaintiff

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described his medical conditions as follows:
PTSD limits ability to tolerate people and loud noises. SJS [(StevensJohnson Syndrome)] limits time in sun and heat. Pain in back, right shoulder,
knees and right foot limits ability to walk and/or stand for long periods of
time.
Id. Plaintiff also noted neuroma, degenerative disc disease, hypertension, sleep apnea, and
migraines as medical conditions limiting his ability to work. Id. at 184. Plaintiff reported
that he does “very little” during the day, noting that his “wife does everything,” including
caring for their children and pets. Id. at 214. Plaintiff further reported that he cannot be
around people, be in the sun and heat, or walk or run, and that his PTSD causes nightmares.
AR at 214.
Plaintiff indicated that he does not have problems with personal care, except he
needs to be reminded to eat. Id. Plaintiff reported he prepares ramen on his own and does
dishes and takes out the garbage. Id. at 215. Plaintiff noted that his ability to house and
yard work is limited by pain, as well as his need to avoid heat and sun. Id. at 216. Plaintiff
reported that when he goes out he either walks or rides in a car, but due to his PTSD he
cannot go out alone and does not drive. Id. at 216. Plaintiff further reported that he can
shop by computer for tools and car parts, which takes him approximately fifteen (15)
minutes, but does not do it often. AR at 216. Plaintiff also reported that although he can
count change, he cannot pay bills, handle a savings account, or use a checkbook or money
orders, and as a result his wife takes care of all of their financials. Id. Plaintiff explained
that a traumatic brain injury has affected his memory and impaired his money management
capabilities. Id. at 217.
Plaintiff reported that he watches television daily, and does not spend time with
other people. Id. Plaintiff indicated that he goes to a friend’s house once or twice per
week, but does not take part in many activities. Id. Plaintiff further reported difficulty in
getting along with others due to violent outbursts, noting that he has become a recluse. AR
at 218. Plaintiff reported that his conditions have affected his ability to lift, squat, bend,
stand, reach, walk, kneel, talk, hear, climb stairs, remember, complete tasks, concentrate,
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use his hands, and get along with others. Id. Plaintiff indicated that he cannot lift more

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than twenty (20) pounds, cannot squat, can stand for approximately ten (10) minutes,

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cannot reach above shoulder height, can walk for approximately five (5) minutes, cannot

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kneel, gets confused, has a hearing aid in his left ear, forgets easily, and is having rails

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installed. Id. Plaintiff further reported that he can walk for approximately five (5) minutes

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and then requires approximately five (5) minutes of rest. Id. Plaintiff also reported that he

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can pay attention for approximately two (2) to five (5) minutes, and cannot finish what he

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starts. Id.

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Plaintiff noted that he can follow written and spoken instructions. AR at 218.

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Plaintiff reported that he does not get along well with authority figures and does not handle

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stress or changes in routine well. Id. at 219. Plaintiff further reported difficulty falling

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asleep and his PTSD causes recurring nightmares. Id. Plaintiff indicated that he requires

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a cane and hearing aid. Id.

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On August 4, 2015, Plaintiff completed a second Function Report—Adult. Id. at

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244–52. Plaintiff again noted that he lived in a house with family. AR at 244. Plaintiff

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described how his conditions limited his ability to work as follows:

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PTSD limits ability to be around crowds and small groups of people. Right
shoulder and lower back hinders bending, reaching, and lifting. Right foot
limits standing, walking, and standard mobility.

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Id. Plaintiff stated that he attempts to help with chores around the house, but his wife cares

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for their children and animals, as well as being his VA appointed family care giver. Id. at

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245. Plaintiff indicated that prior to his conditions, he could run, lift, reach, and be in

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crowds. Id. Plaintiff also reported that he cannot lay on his right side because of shoulder

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pain, and that sleep apnea and medications for PTSD and sleep limit his ability to sleep.

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Id.

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Plaintiff reported difficulty with personal care, including pain affecting his ability

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to dress, having to sit while he bathes, using a cane to stand up, and needing his wife to

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help him shave his face and head, as well as to cook for him. AR at 246. Plaintiff further

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reported that his wife reminds him to shower and take medication. Id. Plaintiff indicated

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that he does not cook because he cannot stand long enough to do so. Id. Plaintiff listed

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laundry as the only chore that he does and noted that he requires reminding to do so. Id. at

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247. Plaintiff reported that he does not go out often because his Stephens-Johnson

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Syndrome diagnosis requires avoiding sun and heat. Id. Plaintiff noted that when he does

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go out, he rides in a car and cannot go out alone because of his PTSD. AR at 247–48.

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Plaintiff can count change, but does not shop and cannot pay bills, handle a savings

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account, or use a checkbook or money orders. Id. Plaintiff reported that his wife takes

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care of all of these tasks because he cannot concentrate on the tasks and is irresponsible

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with money. Id. at 248.

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Plaintiff further reported watching television daily as his only hobby or interest. Id.

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Plaintiff also reported that he does not spend time with others and does not go anywhere

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on a regular basis. Id. Plaintiff described his anxiety as causing problems with people.

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AR at 249. Plaintiff reported that pain limits his physical abilities and PTSD limits his

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mental abilities. Id. Plaintiff noted that these issues affect his ability to lift, squat, bend,

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stand, reach, walk, kneel, talk, hear, climb stairs, see, remember, complete tasks,

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concentrate, understand, follow instructions, and get along with others. Id. Plaintiff

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estimated that he can walk fifty (50) feet before he needs to rest for ten (10) to fifteen (15)

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minutes. Id. Plaintiff also reported that he can only concentrate for two (2) to three (3)

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minutes. Id. Plaintiff indicated that he cannot finish what he started and cannot concentrate

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well enough to follow written instructions and also has difficulty with spoken instructions.

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AR at 249. Plaintiff reported difficulty in getting along with authority figures, handling

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stress, as well as changes in routine. Id. at 250. Plaintiff noted that he requires use of a

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cane, hearing aid, and glass or contacts. Id.

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ii. Work History Report

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On May 6, 2015, Plaintiff also completed a Work History Report. Id. at 191–98,

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222–31. Plaintiff listed his prior work in the military from 2006 through 2014, including

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infantry and allied trades specialist—welder. AR at 191–93, 224–26. Prior to his military

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experience, Plaintiff worked in construction, as a mechanic, and in catering. Id. at 224,

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227–29. Plaintiff described the position of allied trades specialist as welding, lifting metal,

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and fabricating parts. Id. at 225. Plaintiff reported that the job required the use of

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machines, tools, or equipment; technical knowledge or skills; and writing or completing

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reports or similar duties. Id. Plaintiff further reported that while working as an allied trades

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specialist he walked for between eight (8) and ten (10) hours per day; stood for between

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six (6) and seven (7) hours per day; sat for between two (2) and three (3) hours per day;

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climbed, stooped, and crawled, each for approximately one (1) hour per day; kneeled and

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crouched for approximately two (2) hours per day apiece; handled, grabbed, or grasped

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large objects, as well as reached, for between four (4) and five (5) hours per day; and wrote,

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typed, or handled small objects for between one (1) and two (2) hours per day. Id. Plaintiff

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noted that while performing the allied trades specialist job, he lifted large sheets of metal

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and carried them approximately 200 feet on a daily basis. AR at 225. Plaintiff described

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the position as requiring him to lift fifty (50) pounds frequently, and the heaviest weight

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he lifted was 300 pounds. Id. Plaintiff reported that he was a lead worker who supervised

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one (1) other person for between four (4) and five (5) hours per day. Id.

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Plaintiff described his position in infantry as wearing body armor and training

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soldiers. Id. at 226. Plaintiff reported that he used machines, tools, or equipment for this

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position, as well as technical knowledge or skills, and wrote or completed reports, or

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performed other similar duties. AR at 226. Plaintiff further reported that the position

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required him to walk and stand for between eight (8) and ten (10) hours per day; climb,

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kneel, crouch, and crawl for approximately two (2) hours per day; sit for between two (2)

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and three (3) hours per day; handle, grab, or grasp big objects and reach for between four

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(4) and five (5) hours per day; write, type, or handle small objects for between one (1) and

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two (2) hours per day; and stoop for approximately one (1) hour per day. Id. Plaintiff also

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reported that he lifted and carried body armor, people, and weapons approximately 100

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meters daily. Id. Plaintiff indicated that he would frequently lift between 100 and 200

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pounds, and this was also the heaviest weight he lifted. Id. Plaintiff reported that he was

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a lead worker and supervised three (3) people for the entirety of his workday. Id.

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Plaintiff described his position in construction as framing, hanging, and finishing

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drywall. AR at 227. Plaintiff reported that he used machines, tools, or equipment for this

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position, as well as technical knowledge or skills, but did not write or complete reports, or

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perform other similar duties. Id. Plaintiff further reported that the position required him

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to walk; stand; handle, grab, or grasp big objects; reach; and write, type, or handle small

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objects for between eight (8) and twelve (12) hours per day; climb for between six (6) and

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eight (8) hours per day; stoop for between five (5) and eight (8) hours per day; and kneel

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and crouch for between four (4) and six (6) hours per day. Id. Plaintiff also reported that

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he lifted and carried wood and sheetrock between fifty (50) and 100 feet daily. Id. Plaintiff

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indicated that he would frequently lift fifty (50) pounds or more, and the heaviest weight

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he lifted was 100 pounds or more. Id. Plaintiff reported that he was a lead worker and

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supervised one (1) to two (2) people for between four (4) and eight (8) hours of the

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workday. AR at 227.

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Plaintiff described his position as a service technician as performing oil changes.

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Id. at 228. Plaintiff reported that he used machines, tools, or equipment for this position,

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as well as technical knowledge or skills, but did not write or complete reports, or perform

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other similar duties. Id. Plaintiff further reported that the position required him to stand

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for between eight (8) and ten (10) hours per day; to stoop, kneel, crouch, or write, type, or

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handle small objects for between six (6) and eight (8) hours per day; reach for between four

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(4) and six (6) hours per day; walk for between one (1) and two (2) hours per day; and sit,

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climb, and handle, grab, or grasp big objects for approximately one (1) hour per day. Id.

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Plaintiff also reported that he lifted and carried tires for between ten (10) and twenty (20)

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feet, two to three times per week. Id. Plaintiff indicated that he would frequently lift ten

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(10) pounds, and the heaviest weight he lifted was 100 pounds or more. AR at 228.

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Plaintiff reported that he did not supervise others in this position. Id.

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Plaintiff described his position in catering as cooking and cleaning. Id. at 229.

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Plaintiff reported that he used machines, tools, or equipment for this position, but did not

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use technical knowledge or skills, or write or complete reports, or perform other similar

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duties.

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approximately eight (8) hours per day; to stoop for approximately seven (7) hours per day;

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to walk, kneel, and crouch for approximately six (6) hours per day; to reach and write, type,

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or handle small objects for approximately four (4) hours per day; and sit for between three

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(3) and four (4) hours per day. Id. Plaintiff also reported that he lifted and carried pots,

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pans, and a mop and bucket for between ten (10) and fifty (50) feet daily. AR at 229.

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Plaintiff indicated that he would frequently lift less than ten (10) pounds, and the heaviest

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weight he lifted was 20 pounds. Id. Plaintiff reported that he did not supervise others in

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Id.

Plaintiff further reported that the position required him to stand for

this position. Id.
iii. Disability Report—Appeal

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Plaintiff had a Disability Report—Appeal completed indicating that his pain had

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increased, particularly in his right shoulder, foot, and lower back. Id. at 233. Plaintiff

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described his pain as constant. Id. Plaintiff also noted that he experienced migraines once

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or twice every other week and was having nightmares every night. AR at 233. Plaintiff

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also reported that he had become less social due to his conditions and only left his home

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once per week. Id. Plaintiff reported that he could stand for ten (10) to twenty (20) minutes

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before needing to sit down and he could not kneel. Id. Plaintiff further reported that he

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cannot go to the grocery store because large groups of people give him anxiety. Id.

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Plaintiff also reported that he could not lift more than twenty (20) or thirty (30) pounds.

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Id. Plaintiff noted that he has to take breaks while doing chores and that his wife and

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children help him with chores and cooking. AR at 239. Plaintiff indicated that he could

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cook simple meals, but could no longer run and has difficulty dressing and showering

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whenever he has headaches. Id.

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2. Plaintiff’s Medical Records
a. Treatment records
On June 5, 2012, Plaintiff attended a group therapy session at the William Beaumont
Army Medical Center (“AMC”), Biggs Behavioral Health Clinic.

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AR at 361–65.

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Treatment notes written by Storey C. Smith, MA, MSW, indicated a moderate risk of

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violence and a significant history of PTSD secondary to combat trauma. Id. at 361, 363.

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Treatment notes further reflected discussion of a safety plan. Id. at 361. Plaintiff fully

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participated in group and exhibited a willingness to seek out and comply with treatment.

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Id. at 363–64. Plaintiff was also noted to have moderate symptoms of anxiety. Id. at 364.

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On June 18, 2012, Plaintiff was seen by Barry L. Seip, PA at William Beaumont AMC.

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AR at 358–60. Treatment records indicated that Plaintiff had a nerve stimulator implanted

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for foot pain after the excision of a Morton’s neuroma. Id. at 358. Plaintiff also indicated

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that he was under evaluation by Orthopedics for right shoulder pain and that physical

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therapy did not help. Id. PA Seip assessed Plaintiff with joint pain localized in the right

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shoulder, with instability anteriorly and impingement findings. Id. at 359. PA Seip

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additionally noted acromioclavicular joint degeneration in Plaintiff’s right shoulder. Id.

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PA Seip referred Plaintiff to further physical therapy pending evaluation by Orthopedics

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and noted he was non-deployable regarding this issue; however, the nerve stimulator was

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not deemed a barrier to deployment. AR at 359. On June 28, 2012, Plaintiff was seen by

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Alison Ryan Kinsler, M.D. in Orthopedics at William Beaumont AMC regarding

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subluxation in his right shoulder joint. Id. at 356–57. Plaintiff’s active medications list

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included meloxicam, gabapentin, diclofenac sodium gel, trazodone HCL, sertraline HCL,

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lisinopril, meloxicam, oxycodone-acetaminophen, and diazepam. Id. at 356. Dr. Kinsler

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noted symptoms consistent with multidirectional instability; however, Plaintiff’s CT

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arthrogram failed to demonstrate any labral or rotator cuff tears. Id. at 357. Dr. Kinsler

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opined that surgery would not be of benefit; however, recommended that his profile be

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altered for no pushups. Id. Dr. Kinsler further opined that Plaintiff has otherwise been

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able to perform his military duties and was deployable. AR at 357.

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On July 5, 2012, Plaintiff was seen by April Alatorre, APN at William Beaumont

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AMC, Mendoza Behavioral Health, regarding his worsening temper and need for an

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adjustment of his medication. Id. at 351–55. Treatment records indicated that Plaintiff

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was becoming increasingly volatile and becomes angry with the slightest provocation. Id.

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at 352–53. APN Alatorre also noted that Plaintiff’s use of a CPAP machine has improved

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his moods; however, he “still becomes enraged during driving and still has [a] megaphone

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attached to the roof [of] his car and will use it toward offending drivers.” Id. at 353. APN

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Alatorre modified Plaintiff’s medications to taper him off sertraline and switch to Paxil.

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Id. at 352. On July 24, 2012, Plaintiff saw Melissa Michaels McElroy, FNP, at the William

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Beaumont AMC, Pulmonary Clinic for a follow-up regarding his obstructive sleep apnea.

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AR at 349–50. Plaintiff was noted to be compliant with treatment and software was

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downloaded and a prescription for a battery pack given. Id. at 349. On July 25, 2012,

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Plaintiff saw Tara Williams, PA-C at the William Beaumont AMC, Mendonza Clinic for a

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finger injury. Id. at 346–348.

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On February 21, 2013, Plaintiff was seen by NP-C McElroy at the William

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Beaumont AMC, Pulmonary Clinic, for a routine follow-up regarding his sleep apnea. Id.

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at 340–45. NP-C McElroy recommended a slight adjustment to Plaintiff’s CPAP settings.

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Id. at 342. On March 11, 2013, Plaintiff was seen by Kenneth Nelson, M.D. at the William

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Beaumont AMC, Orthopedics Clinic regarding his right shoulder pain. AR at 337–39. Dr.

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Nelson reported that Plaintiff was seen at the request of his Colonel, because the Colonel

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believed an adjustment of Plaintiff’s work profile was necessary. Id. at 337. Dr. Nelson

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noted that Plaintiff was on opioids and Ultram for pain control. Id. Plaintiff reported that

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he could voluntarily subluxate or even dislocate the right shoulder in an inferior direction,

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but his symptoms remained otherwise unchanged. Id. Dr. Nelson opined that Plaintiff was

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not a good candidate for surgery and did not adjust his status. Id. at 339. On April 23,

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2013, Plaintiff was seen by Patricia Lopez-Po at the William Beaumont AMC, IPMC Pain

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Management Clinic regarding his right shoulder pain. AR at 333–36. Radiographs

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indicated a four (4) millimeter bone island near the greater tuberosity, but were otherwise

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unremarkable. Id. at 336.

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On May 3, 2013, Plaintiff was seen by APN Alatorre for a follow-up at Mendoza

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Behavioral Health. Id. at 330–32. Plaintiff reported that he was feeling irritable and

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hypersensitive, exhibiting destructive behavior such as throwing things, punching walls,

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and destroying property but not people. Id. at 331. Plaintiff also reported middle of the

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night awakening and volatility, resulting in fatigue and withdrawal. Id. APN Alatorre

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adjusted Plaintiff’s medications including starting Lamictal. AR at 332. On June 7, 2013,

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Plaintiff was seen by Samuel Almquist, M.D. at the William Beaumont AMC,

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Dermatology Clinic, for a follow-up regarding his Stevens-Johnson Syndrome. Id. at 328–

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29. Plaintiff suffered from a complete body rash and Lamictal was discontinued. Id.

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On July 3, 2013, Plaintiff was seen by Laura Rubinate, D.O. at the William

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Beaumont AMC, Ophthalmology Clinic, for a consult regarding his photophobia and

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Stevens-Johnson Syndrome.

Id. at 326–27.

Dr. Rubinate reported no evidence of

10

ophthalmic manifestations of Stevens-Johnson Syndrome. Id. at 326. On July 29, 2013,

11

Plaintiff was seen by PA Seip at the William Beaumont AMC, Mendoza Clinic, for a follow

12

up. AR at 319–25. PA Seip reviewed Plaintiff’s medical history, including a “failed

13

surgery to correct [a] [M]orton’s neuroma in 2009 that eventually lead to SM having

14

implanted neurostimulator in Nov[ember] of 2010[,] . . . worsening of r[ight] foot pain over

15

[the] past 15 months[,] . . . chronic [right] shoulder pain stemming from combatives [sic]

16

injury over one year ago . . . [with] non surgical [sic] arthritic changes, . . . [and] failed

17

repeated attempts at conservative management with [physical therapy] and injected

18

steroids[,] . . . anger issues[,] . . . and . . . [a] recent hospitalization for [Stevens-Johnson]

19

syndrome triggered by mood stabilizer medication.”

20

examination, PA Seip reported a severely limited range-of-motion in Plaintiff’s right

21

shoulder resulting in moderate to severe pain when lifting the arm overhead and during a

22

Hawkins-Kennedy impingement test. Id. at 319–20. PA Seip further reported deformity

23

pain in Plaintiff’s right foot over the site of the neuroma surgery, as well as pain between

24

his fourth and fifth metatarsal radiating along the lateral foot and ankle. Id. at 320. On

25

August 22, 2013, Plaintiff had a telephone consult with Dr. Lopez-Po to request a refill of

26

his Percocet because he was taking four (4) per day and ninety (90) did not last the month.

27

Id. at 317. Dr. Lopez-Po refilled Plaintiff’s prescription, which directed Plaintiff to take

28

- 13 -

Id. at 319.

Upon physical

1

one (1) every six (6) hours.3 AR at 318.

2

On October 3, 2013, Plaintiff was seen by Christopher Henthorne, DC at the

3

William Beaumont AMC, Chiropractic Clinic. Id. at 313–16. Plaintiff complained of back

4

pain from the bottom of his ribs to his tailbone and that had been present for approximately

5

eight (8) months without a specific mechanism of injury. Id. at 314–16. Dr. Henthorne

6

reported that Plaintiff’s lumbar range of motion was limited in all directions and assessed

7

lumbosacral intervertebral disc degeneration, as well as segmental dysfunction of thoracic

8

region. Id. at 315. On October 4, 2013, Plaintiff was seen by Debra Draluck, M.D. at the

9

William Beaumont AMC, Soldier Family Medical Clinic (“SFMC”)-Traumatic Brain

10

Injury (“TBI”) Clinic regarding his headaches, memory and sleep issues, and tinnitus. Id.

11

at 308–12.

12

hospitalization for Stevens-Johnson syndrome, rather than due to his TBI, and that

13

Plaintiff’s memory issues were also more likely related to PTSD than his TBI. AR at 311–

14

12. Dr. Draluck added Imitrex to Plaintiff’s medications for headache pain. Id. On

15

October 31, 2013, Plaintiff was seen by Glenda Wolfe, LTC, USANC, PMHNP-BC, MSN,

16

RN at the William Beaumont AMC, Behavioral Health Clinic for a medication re-

17

evaluation. Id. at 303–307. Plaintiff reported continued excessive irritability and difficulty

18

sleeping. Id. at 304. NP Wolfe’s assessment of Plaintiff included PTSD and persistent

19

insomnia with a GAF of 60. Id. at 305. NP Wolfe increased Plaintiff’s Paxil prescription

20

and added mirtazapine for anxiety induced insomnia. AR at 305.

Dr. Draluck assessed that Plaintiff’s headaches developed after his

21

On November 12, 2013, Plaintiff followed up with Dr. Draluck regarding his

22

memory and concentration issues. Id. at 300–302. Plaintiff reported that the Imitrex was

23

helping with his headaches and his insomnia and nightmares were improved with

24

medication. Id. at 300. Dr. Draluck’s examination was unremarkable, and she assessed

25

PTSD as the likely etiology of Plaintiff’s symptoms and that his memory issues were likely

26

multifactorial, but unrelated to his prior TBI. Id. at 300–301.

27

On December 9, 2013, Plaintiff was seen by Jenna Tolton, PA at the William

28
3

The Court notes that this prescription equals the four (4) per day that Plaintiff was taking.

- 14 -

1

Beaumont AMC for a possible broken nose due to a fall. Id. at 297–99. PA Tolton’s

2

examination indicated an “abrasion with surrounding erythema and slight swelling

3

immediately distal to bridge of nose with [thrombotic thrombocytopenic purpura (“TTP”)]

4

in the same area; no obvious misalignment; not [sic] TTP of eye orbits and [pupils equal,

5

round, reactive to light, and accommodation] with full [extra-ocular muscles].” Id. at 298.

6

Plaintiff opted not to have x-rays taken, but agreed to monitor symptoms and return if they

7

worsened. AR at 297–99. On December 16, 2013, Plaintiff saw NP Wolfe regarding

8

medication management.

9

gabapentin prescription to maintain decreased anxiety, that he was no longer irritable, and

10

was sleeping well. Id. at 292. NP Wolfe’s examination was unremarkable and she assessed

11

a GAF of 70. Id. at 292–93. NP Wolfe continued Plaintiff’s medications as prescribed.

12

Id. at 294.

Id. at 292–96.

Plaintiff reported a need to increase his

13

On January 3, 2014, Plaintiff was seen by Dr. Draluck for a follow-up TBI

14

evaluation at the William Beaumont AMC, SFMC–TBI. AR at 290–91. Dr. Draluck noted

15

that Plaintiff was receiving occupational therapy for his memory and concentration issues

16

and Imitrex was helping with his headaches. Id. at 290. Dr. Draluck’s examination of

17

Plaintiff was unremarkable. Id. at 290–91. Dr. Draluck further noted that Plaintiff was

18

anticipated to have two (2) more occupational therapy sessions before discharge, again

19

indicating that these were more likely PTSD related rather than due to his TBI. Id. at 291.

20

On February 21, 2014, Plaintiff was seen by Christy Newland, PA-C at the William

21

Beaumont AMC regarding medication refills including gabapentin, mirtazapine,

22

meloxicam, oxycodine [sic], prazosin, tramadol, Paxil, and clonidine. Id. at 288–89. PA

23

Newland noted that Plaintiff was responding well to his current medications. AR at 289.

24

On March 18, 2014, Plaintiff was seen by Holger Brencher, O.D. for a visual acuity

25

examination, which was unremarkable. Id. at 287. On March 20, 2014, Plaintiff was seen

26

by Rene Pedroza, Au.D. at the William Beaumont AMC regarding a concerned moderately

27

severe hearing loss in the right ear. Id. at 284–86. Plaintiff had been previously fitted for

28

a hearing aid in the left ear due to a moderate high frequency Sensorineural Hearing Loss

- 15 -

1

(“SNHL”). Id. at 284. Dr. Pedroza reported that right ear testing did not indicate any

2

significant deficits. Id. at 284–85. On April 9, 2014, a care management note indicated

3

that Plaintiff had been determined to be “physically unfit” due to several medical

4

conditions including, but not limited to, PTSD, degenerative osteoarthritis in the right

5

shoulder, and recurrent moderate pain over post-surgical neuroma site. AR at 840–42. On

6

April 30, 2014, Plaintiff was seen by PA Newland at the William Beaumont AMC for a

7

medication refill. Id. at 280–83. PA Newland noted that Plaintiff was in the process of

8

being medically retired due to his severe, chronic PTSD. Id. at 283.

9

On June 17, 2014, Plaintiff was seen at Southern Arizona Veterans Affairs Health

10

Care System (“SAVAHCS”) in Tucson, Arizona to establish care. Id. at 819–41. Mark A.

11

Hendrickson, M.D. examined Plaintiff and his treatment records noted Plaintiff’s

12

medications to include lisinopril, meloxicam, Percocet, tramadol, clonidine, prazosin,

13

gabapentin, paroxetine, sildenafil, mirtazapine, and sumatriptan.

14

Hendrickson reviewed Plaintiff’s ongoing physical issues including right shoulder pain,

15

lower back pain, and right foot and ankle pain, as well as his PTSD history. AR at 829–

16

41. Plaintiff reported stress due to moving to Sierra Vista and not having a local support

17

system, but happy to live in a rural area allowing him to avoid people. Id. at 839. On the

18

same date, Steve Randall, LCSW performed Plaintiff’s behavioral health interview to

19

establish care. Id. at 819–25. Plaintiff reiterated his concerns regarding financial stress.

20

Id. at 823.

Id. at 830.

Dr.

21

On August 6, 2014, Plaintiff was seen by Patricia L. Fields, M.D. at SAVAHCS for

22

an outpatient psychiatric assessment. Id. at 800–807. Plaintiff reported being “sick of

23

taking so many meds to control outbursts.” AR at 800, 804. Treatment records reflect

24

Plaintiff’s PTSD and obstructive sleep apnea diagnoses, and his desire to decrease his

25

depression, anger, and anxiety. Id. at 804. Plaintiff continued to suffer from nightmares

26

without prazosin. Id. at 803–804. Plaintiff scored a sixty-one (61) on the PTSD Checklist.

27

Id. at 805.

28

In early September 2014, Plaintiff was diagnosed with strep throat and prescribed

- 16 -

1

antibiotics. Id. at 788–92. On September 19, 2014, Plaintiff was seen by Leiann J. Hawley,

2

LCSW for mental health treatment. AR at 781–86. Plaintiff denied interest in therapy;

3

however, his wife reported anger issues and pleaded for assistance.

4

Treatment records indicated that Plaintiff “displayed an expansive demonstration of mood,

5

with both histrionic and narcissistic qualities.” Id. at 782. Ms. Hawley further noted that

6

“[f]urther evaluation of personality may be beneficial for diagnostic and treatment.” Id.

7

On September 29, 2014, Plaintiff was seen at the SAVAHCS pain clinic. Id. at 775–80.

8

Plaintiff reported pain interfering with varying life activities from moderately to severely.

9

AR at 775. Treatment records indicated that Plaintiff has continued stabbing chronic right

10

foot pain, in addition to low back and right shoulder pain. Id. at 779. Treatment records

11

further indicated that Plaintiff might benefit from topical lidocaine ointment and custom

12

orthotics. Id. at 779–80.

Id.at 781–82.

13

On October 1, 2014, Plaintiff was seen by Denise Hawks, M.D., Ph.D. at

14

SAVAHCS for medication management and brief psychotherapy. Id. at 768–73. Dr.

15

Hawks reported that Plaintiff had a good response to treatment and felt that medications

16

were working well for him, though he was still having nightmares. Id. at 769, 772. Dr.

17

Hawks increased Plaintiff’s prazosin in an effort to further reduce his nightmares. AR at

18

772. Dr. Hawks’s evaluation was otherwise unremarkable. Id. at 768–73. On October 21,

19

2014, Plaintiff was seen by Anita Pender, M.D. for an evaluation regarding joint pain. AR

20

at 765–68. Plaintiff reported that he had participated in physical therapy with negative

21

results and that cortisone shots in his shoulder did not help significantly. Id. at 765.

22

Radiographs of Plaintiff’s right shoulder showed hypertrophic osteoarthrosis of the

23

acromioclavicular joint and impingement. Id. at 767. Dr. Pender recommended avoidance

24

of movements that worsen his pain. AR at 767. On October 22, 2014, Plaintiff was seen

25

by James A. Averett, D.P.M. and Billy R. Martin, D.P.M. at SAVAHCS for evaluation of

26

his right foot pain. Id. at 761–65. Plaintiff reported that his spinal cord stimulator had

27

been helpful previously, but was not working currently. Id. at 764. Radiographs indicated

28

“[n]o acute osseous or soft tissue pathology . . [and] [a] [h]allux valgus deformity with

- 17 -

1

minimal [degenerative joint disease in the] first [metatarsophalangeal] joint.” Id. at 765.

2

Plaintiff received an injection for pain and was casted for custom orthotics. Id. at 761–62,

3

765. In the late evening of October 25, 2014, Plaintiff was brought to the Sierra Vista

4

Regional Health Center (“SVRHC”) Emergency Department. AR at 391–96, 404. On

5

October 26, 2014, Plaintiff was held in the Emergency Department for a behavioral health

6

placement. Id. at 397–403, 417–28, 458–64. Treatment records indicated that Plaintiff

7

had two (2) knives on his person prior to arrival, but had no memory of his PTSD episode.

8

Id. at 418–19, 423, 458–59, 491, 744. A Crisis Risk Assessment completed on the same

9

date indicated that “a very bloody movie set him off and police were called.” Id. at 443,

10

451. At the time of the hold, however, Plaintiff was calm. Id. at 448–52. Plaintiff’s hold

11

continued through October 27, 2014. AR at 397–403, 452–57. On October 27, 2014,

12

Plaintiff was admitted to SAVAHCS identified as having suicidal and homicidal ideation.

13

Id. at 743–61. Plaintiff reported that he had been having blackouts and got violent. Id. at

14

684, 747, 754. Treatment records from October 28, 2014 indicated that Plaintiff’s wife

15

reported that Plaintiff had consumed excessive amounts of brandy prior to the episode that

16

resulted in hospitalization. Id. at 741. Plaintiff’s wife further reported that Plaintiff was

17

compliant with his medication outside of the hospital; however, often expresses suicidal

18

thoughts when he is drunk. Id. Treatment records indicated that Plaintiff was started on

19

“lithium for augmentation and mood stabilization.” AR at 739. Plaintiff’s prazosin

20

prescription was also increased to aid with nightmares. Id. Plaintiff participated in group

21

therapy while hospitalized and consistently reported irritability. Id. at 716, 729, 732.

22

Treatment records from Plaintiff’s October 29, 2014 evaluation for his chronic pain

23

indicated that Plaintiff’s implantable pulse generator—spinal cord stimulator—was not

24

working and Plaintiff also reported that his pain was not well controlled with his current

25

medications. Id. at 712. While hospitalized, Plaintiff completed a Multidimensional Pain

26

Inventory which indicated pain in his right foot, right shoulder, and back; significant

27

impairment at home due to chronic pain; moderately severe insomnia, nightmares, and

28

acting combatively toward his wife while sleeping; difficulty with interpersonal distress in

- 18 -

1

his marriage; mildly agitated mood; difficulty with high affective distress; and the

2

avoidance of many activities that involve pain. Id. at 724–25. Plaintiff expressed a lack

3

of willingness to participate in group-based programs. AR at 726. Plaintiff also admitted

4

hearing his name called and seeing shadows around corners, evidencing auditory and visual

5

hallucinations.

6

unremarkable. Id. at 988–89. On October 31, 2014, treatment records indicated that

7

Plaintiff continued to suffer back and shoulder pain, as well as anxiety, anger, and auditory

8

hallucinations. Id. at 690–91, 694, 698–99, 703, 705, 706, 711. Plaintiff also expressed

9

concerned regarding the status of his marriage. Id. at 699, 703, 707. Dr. Koschorke

10

adjusted Plaintiff’s medications including discontinuing meloxicam and tramadol and

11

starting topiramate. AR at 709–10. Additionally, Plaintiff participated in group therapy.

12

Id. at 689. On November 1, 2014, Plaintiff continued to have anxiety, as well as auditory

13

and visual hallucination. Id. at 681. On November 2, 2014, Plaintiff participated in group

14

therapy and continued to suffer anxiety, and auditory and visual hallucinations. Id. at 678.

15

Plaintiff was discharged on November 3, 2014. Id. at 491–92, 664–77, 870–80. Diagnoses

16

at discharge included PTSD, unspecified personality disorder, mild alcohol use disorder,

17

tobacco use disorder, and chronic pain. AR at 665. On November 5, 2014, Plaintiff was

18

seen for a post-discharge follow-up and reported feeling better. Id. at 661.

Id.

Radiographs of Plaintiff’s thoracic and lumbar spine were

19

On December 8, 2014, Plaintiff was seen at the SVRHC Emergency Department for

20

shakes possibly due to a lithium overdose. Id. at 370–90, 647–48. Treatment records

21

indicated that Plaintiff was started on lithium in October and the dosage increased in

22

December. Id. at 373. Plaintiff was released with instructions to follow-up with the VA

23

the following day. Id. at 374, 384. Records also indicated consideration of Plaintiff’s need

24

for a family caregiver, noting a low dependence score. AR at 649–55. On December 9,

25

2014, Plaintiff followed up with SAVAHCS mental health regarding his Emergency

26

Department visit. Id. at 643–46. Plaintiff was advised to reduce his caffeine intake because

27

it could be exacerbating his negative moods. Id. at 643. On December 22, 2014, Plaintiff

28

left a message regarding the need for medication renewal. Id. at 640–42. Plaintiff’s wife

- 19 -

1

also reported that she completed her caregiver training and that the family was under

2

financial stress. Id. at 639.

3

January 5, 2015 treatment records indicated that Plaintiff’s wife reported his mood

4

swings as quicker, but occurring further apart. AR at 635, 637–39. Plaintiff’s wife further

5

reported that Plaintiff was not sleeping well, including waking at the slightest noise, cursing

6

and yelling in his sleep, and snoring despite compliance with his CPAP machine. Id.

7

Plaintiff expressed a desire to stop lithium due to negative side effects. Id. Plaintiff also

8

indicated that the topical lidocaine did not improve his foot pain. Id. at 634. On January

9

6, 2015, Plaintiff’s wife called regarding Plaintiff’s diarrhea and continued nightmares

10

despite taking prazosin. Id. at 629–33. Plaintiff was told to stop lithium completely to see

11

if his gastrointestinal symptoms resolve. AR at 629. On January 7, 2015, Plaintiff had a

12

teleconference regarding hemorrhoid pain after previous gastrointestinal issues. Id. at 625–

13

28, 980–83. On January 8, 2015, Plaintiff’s wife was given an initial assessment as

14

Plaintiff’s caregiver. Id. at 620–24, 975–80. On January 23, 2015, a caregiver in-home

15

assessment took place. Id. at 609–19, 965–74. Assessment records indicated that Plaintiff

16

had a positive screen for depression. Id. at 612, 968. On January 26, 2015, Plaintiff’s wife

17

was issued a caregiver certificate. AR at 597–608. On January 27, 2015, Plaintiff was

18

seen by Dr. Hawks for supportive therapy and medication management. Id. at 590–597,

19

956–63. Treatment records indicated that Plaintiff’s tremor was caused by excessive

20

caffeine, and Plaintiff discontinued lithium due to diarrhea. Id. at 590, 956. Dr. Hawks

21

discussed the use of carbamazepine for mood stability and anger reduction, as well as its

22

possible use in aiding sleep. Id. at 590, 956–57. Dr. Hawks reported Plaintiff’s mood as

23

“angry” with an irritable, angry affect, but capable of full range. Id. at 592, 958. Dr. Hawks

24

prescribed carbamazepine, increased prazosin, and continued paroxetine. AR at 593, 960.

25

A PTSD Checklist (Civilian) was performed, was positive, and Plaintiff’s score was 64.

26

Id. at 595–97, 961–63. On the same date, an in-home assessment for the caregiver program

27

occurred. Id. at 588–90, 954–56.

28

On February 13, 2015, Plaintiff had a teleconference with the pharmacy regarding

- 20 -

Plaintiff’s oxycodone/acetaminophen

1

his right foot pain.

2

prescription was adjusted. Id. On March 11, 2015, Plaintiff’s home was assessed for a

3

Home Improvements and Structural Alterations (“HISA”) grant to make the bathroom safer

4

for Plaintiff. AR at 579–80, 947–48. On March 18, 2015, Dr. Hawks’s office called and

5

spoke with Plaintiff’s wife. Id. at 577–79, 945–47. Plaintiff’s wife reported that the

6

carbamazepine was causing Plaintiff to sleep a lot and be very tired. Id. at 578, 945.

7

Plaintiff was advised to cease the carbamazepine because he would not be able to tolerate

8

a high enough dose to positively impact his mood. Id. at 578–79, 946.

Id. at 586–87, 952–53.

9

On April 8, 2015, Plaintiff attended the mandatory Controlled Substance Education

10

class. Id. at 574–75, 940–42, 1060–61. Caregiver assessment records from April 13, 2015

11

indicated that Plaintiff’s mirtazapine prescription would not be refilled until his blood

12

pressure was better controlled. AR at 556, 563, 565, 938, 1042, 1057. On April 24, 2015,

13

Plaintiff saw Dr. Hawks for supportive therapy and medication management. Id. at 550–

14

54, 926–31, 1036–41. Treatment records indicated that Plaintiff was unable to sleep

15

without mirtazapine, and as such Dr. Hawks restarted the prescription. Id. at 550, 553,

16

927, 930, 1037, 1040. Dr. Hawks noted that Plaintiff was not as irritable as in past visits.

17

Id. at 552, 928, 1038.

18

On May 11, 2015, Plaintiff was seen by primary care regarding a cyst behind his

19

right ear. Id. at 921–26, 1033–36, 1462–65. On May 13, 2015, Plaintiff had a caregiver

20

program in-home assessment. AR at 916–19, 1026–29, 1454–57. Plaintiff’s wife reported

21

that “the list of triggers ‘got bigger.’” Id. at 917, 1027, 1456. Plaintiff’s wife also indicated

22

that her own attention deficit hyperactivity disorder causes difficulty with communication

23

resulting in Plaintiff becoming frustrated. Id. at 917–18, 1027–28, 1455–57. Plaintiff

24

became agitated when discussing difficulty in getting services due to limited cellular

25

telephone minutes and non-functioning vehicle. Id. at 918, 1028, 1457. On May 28, 2015,

26

Plaintiff underwent a surgery consult regarding the small cyst behind his right ear. Id. at

27

915–16, 1025, 1165, 1454.

28

On June 2, 2015, Plaintiff had a cyst removed from behind his right ear. AR at 908–

- 21 -

1

13, 988, 1018–23, 1447–52. On June 24, 2015, Plaintiff was seen for follow-up regarding

2

his medication changes. Id. at 897–900, 1007–10, 1436–38. Plaintiff requested switching

3

to trazodone from mirtazapine, as the latter caused him to sleep too deeply. Id. at 897–98,

4

1007, 1436–37. Treatment records indicated Plaintiff continued to suffer anger and anxiety

5

regarding finances and work occurring on their home. Id. at 898, 1007–08, 1436. A June

6

31, 2015 Psych. Panel was negative for oxycodone. Id. at 1384. On July 16, 2015, Plaintiff

7

was assessed in-home. AR at 889–95, 993–1005, 1420–34. Plaintiff reported continued

8

anxiety, but both Plaintiff and his wife noted his improved mood due to the trazadone. Id.

9

at 891, 893, 995, 1001, 1430, 1432.

10

On August 14, 2015, Plaintiff’s wife “called to report that [Plaintiff] [was] having

11

problems withi [sic] his sleep again as well as his temperament.” Id. at 1418. Plaintiff’s

12

wife also reported that Plaintiff stated he is not getting as much sleep. Id. On August 27,

13

2015, Plaintiff was seen by Dr. Hawks for supportive therapy and medication management.

14

Id. at 1356–61. On August 31, 2015, Plaintiff was seen in the SAVAHCS Emergency

15

Department after suffering a PTSD flashback and subsequently admitted. AR at 1342–56.

16

Plaintiff was hospitalized following a dissociative reaction during a nap. Id. at 1125–31,

17

1288–1356. Treatment records indicated that Plaintiff may have suffered syncope and

18

reported waking violently from a nap requiring his wife to restrain him. Id. at 1327, 1350–

19

51. Plaintiff also reported an elevated pain level. Id. at 1347. During his hospitalization,

20

Plaintiff tapered off Paxil and began Cymbalta. Id. at 1126–27, 1318. Plaintiff also

21

participated in group therapy. AR at 1306–07, 1321. Treatment records noted that Plaintiff

22

may have had anger issues prior to PTSD and that he seemed “to be struggling with

23

meaning and purpose in his life.” Id. at 1317. Treatment records further noted that Plaintiff

24

“has [a] currently unspecified personality disorder[,] [and that] [t]he maladaptive

25

cognitions and traits from this disorder distort diagnosis and interfere with the patient’s

26

motivation for change.” Id. at 1291. Plaintiff was discharged on September 4, 2015. Id.

27

at 1125, 1292–94.

28

hospitalization. Id. at 1158–59, 1282–83. Plaintiff was “slightly angry” and was not taking

On September 11, 2015, Plaintiff had a follow-up after his

- 22 -

1

his duloxetine as prescribed. AR at 1159, 1289. The assessment included PTSD, partner

2

relational problems, and an unspecified personality disorder. Id.

3

On October 28, 2015, a telephonic assessment of Plaintiff and his caregiver was

4

performed by the Caregiver Program. Id. at 1272–78. On November 16, 2015, Plaintiff

5

was seen by Dr. Hawks. Id. at 1414–16. Treatment records indicated that Plaintiff had a

6

“partial response to paroxetine, but remains unmotivated, low energy – may be more

7

personality-driven, but will transition from paroxetine to duloxetine in effort to better

8

address depression and pain symptoms[.]” Id. at 1416. Dr. Hawks listed Plaintiff’s current

9

problems as PTSD, relationship problems, and a personality disorder.

AR at 1416.

10

Plaintiff also saw Dr. Hendrickson for management of his chronic issues. Id. at 1265–71.

11

Plaintiff complained of increased pain and a reduced range of motion in his right shoulder,

12

with it going out of joint more frequently. Id. at 1265. Radiology records from the same

13

date indicated “mild degenerative findings of the acromioclavicular joint . . . [and]

14

dextroconvex curvature to the midthoracic spine.” Id. at 1108. On November 23, 2015,

15

Plaintiff was seen by Dr. Hawks for supportive therapy and medication management. Id.

16

at 1408–14. Dr. Hawks noted that Plaintiff reported not noticing a significant benefit from

17

the change to duloxetine, but he presented as less irritable. AR at 1408. Plaintiff indicated

18

his plans to start school to study welding, beginning in January. Id. at 1409. Dr. Hawks’s

19

summary impression indicated that Plaintiff was “feeling better with duloxetine” and that

20

he was in “good spirits and more easily engaged.” Id. at 1412. Plaintiff’s depression screen

21

was negative; however, his PTSD checklist remained positive with a score of 50. Id. at

22

1412–13.

23

On December 30, 2015, Plaintiff and his wife received a caregiver program annual

24

in-home monitoring assessment. Id. at 1390–1405. Plaintiff’s dependence on his wife as

25

caregiver remained unchanged. AR at 1391–92, 1399–1400. On January 7, 2016, Plaintiff

26

was seen by Felix F. Jabczenski, M.D. for an orthopedic surgery consult to evaluate and

27

treat his right shoulder.

28

acromioclavicular (AC) joint synovitis right shoulder[,]” and recommended injection of

Id. at 1389–90.

- 23 -

Dr. Jabczenski diagnosed a “[m]ild

1

the joint with Depo-Medrol and Marcaine. Id.

2

On February 19, 2016, Plaintiff saw Dr. Hawks for supportive therapy and

3

medication management. Id. at 1378–83. Dr. Hawks noted that both Plaintiff and his wife

4

reported that “the duloxetine has not been helpful, with veteran continuing to be moody

5

and irritable.” Id. at 1378. Plaintiff was reported to be “active in school with welding

6

classes and English class, in both of which he is doing very well, but is apathetic when he

7

comes home[.]” AR at 1378. Plaintiff also reported that he was not finding trazadone

8

helpful for sleep, and acquiesced to trying mirtazapine again. Id. at 1379. Dr. Hawks

9

discontinued duloxetine and prescribed bupropion, as well as recommending the CHOICE

10

program to Plaintiff and his wife for couples therapy. Id. at 1382. On March 21, 2016,

11

Plaintiff was seen by Marissa Jackson, RN for a follow-up after his medication change. Id.

12

at 1373–75. Plaintiff reported that his sleep remained “horrible,” but the he was doing well

13

in school and getting his welding degree. Id. at 1374. Plaintiff also reported that he forgot

14

his cane, and although there was pain, he was not returning home to get it. AR at 1374.

15

On April 18, 2016, Plaintiff and his wife underwent a Caregiver Program ninety

16

(90) day monitoring assessment. Id. at 1258–65, 1362–66. Plaintiff’s wife described him

17

as “frustrated and cranky” and “only taking his blood pressure and sleep medications as he

18

did not like how the other medications made him feel.” Id. at 1261, 1363. On April 27,

19

2016, Plaintiff was seen by Dr. Hawks for supportive therapy and medication management.

20

Id. at 1245–52.

21

bupropion and discontinued use. Id. at 1249. Records further indicated that interactions

22

with his wife, as well as challenges in an academic setting, trigger Plaintiff’s persistent

23

irritability. AR at 1249. Dr. Hawks prescribed nortriptyline for Plaintiff’s PTSD and

24

personality disorder. Id. at 1246, 1249. Dr. Hawks performed the PTSD Checklist

25

(Civilian), which was positive with a score of 70. Id. at 1251.

Treatment records indicated that Plaintiff was more irritable with

26

On June 8, 2016, Plaintiff was seen by Nurse Jackson and reported that he had not

27

reached the target dose of nortriptyline and had ceased mirtazapine completely. Id. at

28

1238–40. Plaintiff further reported a lack of noticeable difference in his mood and

- 24 -

1

irritability. Id. at 1238. On June 23, 2016, Plaintiff was seen by Dr. Hendrickson for

2

chronic issue management. AR at 1229–33. Plaintiff indicated desire for an increase in

3

his opioid prescription for his chronic foot pain; however, Dr. Hendrickson discussed the

4

need to find a non-opioid solution to his symptoms. Id. at 1230–31. Dr. Hendrickson also

5

reduced his lisinopril prescription, which he thought might be contributing to Plaintiff’s

6

orthostatic symptoms. Id. at 1231. On July 19, 2016, Plaintiff and his wife had a telephonic

7

consultation with the Caregiver Program, which was unremarkable. Id. at 1216–25. On

8

July 28, 2016, Plaintiff informed Emily Huynh, O.D. that he continued to experience

9

extreme photophobia. Id. at 1211–14.

10

On August 18, 2016, Plaintiff was seen by Karen Schloemer Atencio, M.D. at the

11

pain clinic for evaluation regarding his bilateral shoulder, low back, and right foot pain.

12

AR at 1205–09. Dr. Atencio noted that Plaintiff became upset regarding the repetitive

13

nature of questioning regarding his medication and indicated that “he just wanted his SCS

14

battery replaced.” Id. at 1206, 1208. Plaintiff further reported that shoulder injections were

15

not effective. Id. at 1206. On September 9, 2016, Plaintiff was seen for a check of his

16

spinal cord stimulator with the Med-tronics representative. Id. at 1202–03. Testing

17

demonstrated that the implantable pulse generator was inoperable. Id. at 1203. On

18

September 19, 2016, Eve L. Broughton, Clinical Nurse Specialist made a note in the

19

records regarding Plaintiff’s pain management consult.

20

Broughton noted that Plaintiff had refused to discuss his pain medication during his visit

21

to the pain clinic and three of his previous drug screens had been negative for opioids and

22

oxycodone. Id. at 1199. CNS Broughton expressed her concern regarding “the possibility

23

of diversion and need [for] advice from pain specialists as to the best way to proceed.” Id.

24

On October 19, 2016, the Caregiver Program spoke with Plaintiff’s wife for a 90

25

day monitoring assessment. Id. at 1188–95. Plaintiff’s wife indicated that Plaintiff no

26

longer needed therapy, but also stated that he was not ready for therapy at that time. Id. at

27

1189–91, 1193–95. On November 2, 2016, the Family Caregiver Program determined that

28

Plaintiff was no longer eligible for the program. AR at 1179–86. On December 9, 2016,

- 25 -

AR at 1199–1202.

CNS

1

Plaintiff was seen by Dr. Hawks for supportive therapy and medication management. Id.

2

at 1172–77. Plaintiff reported continued irritability, but agreed to increase mirtazapine to

3

a therapeutic dose. Id. at 1172–73, 1176. Dr. Hawks noted Plaintiff’s mood as irritable,

4

as well. Id. at 1174. On December 15, 2016, Plaintiff arrived at the incorrect time for a

5

neurosurgery appointment regarding his spinal cord stimulator, became angry, and left. Id.

6

at 1171–72. On December 22, 2016, a medication management note by Dr. Hendrickson

7

indicated his concern regarding diversion of Plaintiff’s opioids.

8

Hendrickson spoke with Plaintiff on the telephone, but did not confront him directly

9

regarding this issue, rather stating the concern generally. Id. Plaintiff did not respond to

10

Dr. Hendrickson’s concern. Id. On January 6, 2017, Plaintiff’s wife called regarding the

11

appeal of her family caregiver status. Id. at 1166.

12

AR at 1169.

Dr.

b. Examining physician

13

On June 2, 2015, Gwendolyn W. Johnson, Ph.D. examined Plaintiff for a

14

Compensation and Pension Examination. AR at 880–89, 900–08, 1010–18, 1438–47. Dr.

15

Johnson noted that Plaintiff was driven to the appointment by a friend. Id. at 888, 908,

16

1017, 1446. Dr. Johnson noted symptoms of Plaintiff’s PTSD diagnosis included anxiety

17

and suspiciousness. Id. Dr. Johnson opined that Plaintiff’s PTSD symptoms did not cause

18

“clinically significant distress or impairment in social, occupational, or other important

19

areas of functioning.” Id.

20

c. Reviewing physicians

21

i. James Sturgis, Ph.D.

22

On May 29, 2015, James Sturgis, Ph.D. reviewed Plaintiff’s medical records for the

23

initial determination and provided a mental residual functional capacity assessment. AR

24

at 68–69, 72–74.

25

limitations, with marked limitation in the ability to understand and remember detailed

26

instructions. Id. at 73. Dr. Sturgis further opined that Plaintiff was not significantly limited

27

in his ability to remember locations and work-like procedures or to understand and

28

remember very short and simple instructions. Id.

Dr. Sturgis opined that Plaintiff had understanding and memory

- 26 -

1

Dr. Sturgis also opined that Plaintiff had sustained concentration and persistence

2

limitations. Id. Dr. Sturgis found Plaintiff not significantly limited in his ability to carry

3

out very short and simple instructions; perform activities within a schedule, maintain

4

regular attendance, and be punctual within customary tolerances; to sustain an ordinary

5

routine without special supervision; and to make simple work-related decisions. Id. Dr.

6

Sturgis further found Plaintiff moderately limited in his ability to maintain attention and

7

concentration for extended periods and markedly limited in his ability to carry out detailed

8

instructions and work in coordination with or in proximity to others without being

9

distracted by them, as well as to complete a normal workday and workweek without

10

interruptions from psychologically based symptoms and to perform at a consistent pace

11

without an unreasonable number and length of rest periods. AR at 73.

12

Regarding social interactions, Dr. Sturgis opined that Plaintiff was markedly limited

13

in his ability to interact appropriately with the general public and moderately limited in his

14

ability to accept instructions and respond appropriately to criticism from supervisors and

15

to get along with coworkers or peers without distracting them or exhibiting behavioral

16

extremes. Id. at 73–74. Dr. Sturgis found no significant limitation in Plaintiff’s ability to

17

ask simple questions or request assistance or to maintain socially appropriate behavior and

18

to adhere to basic standards of neatness and cleanliness. Id. at 74.

19

Dr. Sturgis opined that Plaintiff had adaptation limitations including marked

20

limitation in the ability to respond appropriately to changes in the work setting. Id. Dr.

21

Sturgis found no significant limitation in Plaintiff’s ability to be aware of normal hazards

22

and take appropriate precautions; to travel in unfamiliar places or use public transportation;

23

and to set realistic goals or make plans independently of others. Id. Dr. Sturgis concluded

24

that because of PTSD and an affective disorder, Plaintiff could perform simple tasks, but

25

could not sustain eight (8) hours per day, forty (40) hours per week or adapt to the normal

26

stress and change in routine expected in a simple, repetitive, routine work environment

27

without special supervision. AR at 74. Dr. Sturgis further noted “significant limitations in

28

[Plaintiff’s] ability to tolerate criticism from supervisors and will only be able to interact

- 27 -

1

with peers and supervisors on a very limited, superficial basis[,] . . . [and] cannot interact

2

with the general public.” Id.

3

ii. David M. Bailey, M.D.

4

On June 8, 2015, David M. Bailey, M.D. reviewed Plaintiff’s medical records and

5

provided a Residual Functional Capacity assessment. AR at 69–72. As an initial matter,

6

Dr. Bailey opined that “one or more of the [Plaintiff’s] medically determinable

7

impairment(s) (MDI(s)) [could] reasonably be expected to produce the [Plaintiff’s] pain or

8

other symptoms[,] [and] . . . the [Plaintiff’s] statements about the intensity, persistence, and

9

functionally limiting effects of the symptoms [were] substantiated by the objective medical

10

evidence alone[.]” Id. at 69–70. Dr. Bailey further opined that Plaintiff had exertional

11

limitations. Id. at 70. These limitations included frequently lifting up to ten (10) pounds,

12

standing or walking for a total of two (2) hours, and sitting for approximately six (6) hours

13

in an eight (8) hour workday. Id. Dr. Bailey also opined that Plaintiff could never climb

14

ladders, ropes, or scaffolds, but was otherwise unlimited in his ability to climb ramps and

15

stairs, balance, stoop, kneel, crouch, or crawl. Id. at 70–71. Dr. Bailey did not find Plaintiff

16

to have any manipulative, visual, or communicative limitations. AR at 71. Regarding

17

environmental limitations, Dr. Bailey opined that Plaintiff should avoid concentrated

18

exposure to noise and hazards, but was unlimited with regard to extreme cold and heat,

19

wetness, humidity, vibration, and fumes, odors, dusts, gasses, or poor ventilation. Id.

20

3. Vocational Expert John Komar’s Testimony

21

Mr. John Komar testified as a vocational expert at the administrative hearing. AR

22

at 14, 52–63. Mr. Komar described Plaintiff’s past relevant work in the military as a

23

welder, Dictionary of Occupational Titles (“DOT”) number 819.684-010, with a Specific

24

Vocational Preparation (“SVP”) of 2, and an exertional level of medium, but performed at

25

as very heavy. Id. at 53–54. Mr. Komar further described the job of combat rifle crew

26

member as DOT number 378.684-014, with an SVP of 3, and an exertional level of very

27

heavy. Id. at 54. The last job Mr. Komar described was dry wall applicator as DOT number

28

342.361-030, with an SVP of 7 and exertional level of very heavy, but performed at heavy.

- 28 -

1

Id.

2

The ALJ asked Mr. Komar to consider a hypothetical individual of the same age,

3

vocational, and educational background of the Plaintiff and without any exertional

4

limitations, but limited to performing only simple, repetitive tasks learned in thirty (30)

5

days or less or after a brief demonstration on the job, and the tasks should have minimal

6

change in the task as assigned. Id. at 54. The ALJ placed a further limitation on the

7

hypothetical individual, limiting him to no more than occasional contact with coworkers,

8

supervisors, and the public. AR at 54. Mr. Komar testified that such an individual would

9

not be able to perform Plaintiff’s past work. Id. Mr. Komar further testified that such an

10

individual would be able to perform other work, such as an industrial cleaner, DOT number

11

381.687-018, with an SVP of 2, and medium exertional level, and 113,700 jobs in the

12

national economy. Id. Mr. Komar also suggested the hypothetical individual could work

13

as a window cleaner, DOT number 389.687-014, with an SVP of 2, and medium exertional

14

level, and 16,200 jobs in the national economy. Id. at 55. Mr. Komar’s third suggestion

15

was automobile detailer, DOT number 915.687-034, with an SVP of 2, and medium

16

exertional level. Id. Mr. Komar testified that there were 53,000 of these positions in the

17

national economy. AR at 55. The ALJ added to his hypothetical individual that such

18

individual was limited to a full range of medium work and enquired whether the previously

19

listed jobs would still be available. Id. Mr. Komar confirmed that the same three (3) jobs

20

would be available. Id.

21

The ALJ then further reduced the exertional level that his hypothetical individual

22

would be capable of from a full range of medium work to a full range of light work and

23

asked about the work available to that person. Id. Mr. Komar testified that such an

24

individual would be unable to perform Plaintiff’s past work. Id. Mr. Komar further

25

testified that the individual would be able to work as a collator operator, DOT number

26

208.685-010, with an SVP of 2, and light exertional level, and with 14,700 jobs in the

27

national economy. AR at 55. Mr. Komar testified that another possible job would be

28

advertising material distributor, which he described as a person who puts leaflets

- 29 -

1

underneath the windshield wipers of cars parked at a shopping mall, DOT number 230.687-

2

010, an SVP of 2, exertional level of light, and with approximately 41,200 jobs in the

3

national economy. Id. at 55–56. Mr. Nielson also testified regarding the availability of

4

silver wrapper, DOT number 318.687-018, with an SVP of 1, light exertional level, and

5

with 214,100 jobs in the national economy. Id. at 56.

6

The ALJ again modified his hypothetical individual to have the same non-exertional

7

limitations, but reduced the exertional level to sedentary. Id. at 56. The ALJ then enquired

8

whether such a hypothetical individual could do the jobs Mr. Komar had suggested, and if

9

not, was there other work available. Id. Mr. Komar testified that such an individual could

10

not do the previously suggested work, but could work as a document preparer, DOT

11

number 249.587-018, with an SVP of 2, sedentary exertional level, and approximately

12

147,100 jobs in the national economy. AR at 56. Next, Mr. Komar suggested work as a

13

table worker, DOT number 739.687-182, with an SVP of 2, and sedentary exertional level,

14

and 124,000 jobs in the national economy. Id. Mr. Komar further testified regarding the

15

availability of addresser, DOT number 209.587-010, with an SVP of 2, and a sedentary

16

exertional level, and approximately 13,300 jobs in the national economy. Id.

17

Mr. Komar confirmed that the duties of a document and addresser had changed with

18

new technology, but that the exertional level and other characteristics were consistent with

19

the DOT. Id. at 56–57. Mr. Komar also testified that the jobs he identified were consistent

20

with the DOT and the Selected Characteristics of Occupations (“SCO”) descriptions, other

21

than the addresser and the document preparer. Id. at 57. Mr. Komar noted that the DOT

22

does not refer to the extent to which an individual interacts with coworkers, supervisors,

23

or the general public, and as such his testimony in that regard was based on his experience

24

as a vocational rehabilitation counselor. AR at 57.

25

Upon questioning by Plaintiff’s counsel, Mr. Komar testified that using a cane 100

26

percent of the time would reduce the available work to the sedentary positions. Id. at 60–

27

61. Mr. Komar also testified that all competitive work requires the ability to maintain

28

attention and concentration for at least a two hour period continuously and a need for two

- 30 -

1

or more unscheduled breaks per hour would also preclude all employment. Id. at 61. Mr.

2

Komar further opined that limiting the hypothetical individual’s exposure to noise and

3

environmental hazards would leave available work as an industrial cleaner, collator

4

operator, silver wrapper, document preparer, and addresser, as well as the possibility of

5

table worker. Id. at 61–62. Finally, Mr. Komar testified that in general, an employee can

6

be absent once per month. Id. at 62.

7

4. Lay Witness Testimony

8

On May 1, 2015, Michele Rogers, Plaintiff’s wife, completed a Function Report—

9

Adult—Third Party. AR at 200–09. Ms. Rogers reported that Plaintiff lives in a house

10

with family, and she spends several days with Plaintiff at a time. Id. at 202. Ms. Rogers

11

further reported that Plaintiff “spends a lot of time in a great deal of pain[] and [his] mood

12

swings can be violent[,] [h]e gets depressed often and cannot be in a room w[ith] more than

13

three people at a time.” Id. Ms. Rogers described Plaintiff as unable to “spend too long in

14

sunlight or heat since the SJS and his migraines prohibit him from daily activities.” Id.

15

Ms. Rogers reported Plaintiff’s typical day to include eating, sitting down, and being

16

unable to focus. Id. at 203. Ms. Rogers observed that Plaintiff would start a project, “then

17

his pain, the heat, or both [would] prevent him from completing [it].” AR at 203. Ms.

18

Rogers further reported that she cares for Plaintiff, their children, and their pets. Id.

19

Ms. Rogers described Plaintiff before his conditions as calmer, able to sleep, and

20

able to function around large groups. Id. Ms. Rogers indicated that Plaintiff’s sleep apnea

21

and recurring nightmares are disruptive of his sleep. Id. Ms. Rogers reported that

22

Plaintiff’s personal hygiene was normally “fine,” although he sometimes forgets to eat or

23

is unable to stop eating, and his interaction with their children is strained. Id. at 203–04.

24

Ms. Rogers further reported that Plaintiff is able to make “something easy (ramen)” for

25

lunch, but does not otherwise cook regularly. AR at 204. Ms. Rogers noted that Plaintiff

26

regularly takes out the trash and does dishes, if he remembers or is reminded. Id. Ms.

27

Rogers further noted that Plaintiff is unable to do house or yard work because he has to

28

avoid too much heat or sun. Id. at 205.

- 31 -

1

Ms. Rogers reported that Plaintiff goes out once every three (3) to four (4) days, if

2

a friend needs help or Plaintiff needs space. Id. Ms. Rogers further reported that Plaintiff

3

either walks or rides in a car when he goes out, that he is not gone longer than three (3)

4

hours, and cannot have weapons. Id. Ms. Rogers also reported that Plaintiff does not drive

5

because his road rage is more violent and his pain prevents driving. AR at 205. Ms. Rogers

6

observed that Plaintiff can shop for car parts or tools online, and although Plaintiff can

7

count change, his conditions require that she manage the money and bills for their

8

household. Id. Ms. Rogers explained that Plaintiff’s traumatic brain injury has caused his

9

memory to be bad, and Plaintiff becomes violent with the bill people. Id. at 206.

10

Ms. Rogers described Plaintiff’s hobbies and interests and watching television,

11

welding, helping someone, stereos, and mechanics. Id. Ms. Rogers confirmed, however,

12

that Plaintiff watches television and does little else. Id. Ms. Rogers also confirmed that

13

Plaintiff does not spend time with others, but may go to a friend’s house for a couple of

14

hours, once in a while. AR at 206. Ms. Rogers described Plaintiff as having problems

15

getting along with others, marked by violent outbursts due to a lack of patience or ignorant

16

individuals. Id. at 207. Ms. Rogers further described Plaintiff as exhibiting “isolation,

17

moodiness, laziness, over or undereating, sleep deprivation, and low interest” when it

18

comes to social activities. Id.

19

Ms. Rogers reported that Plaintiff’s conditions affect his ability to squat, bend,

20

stand, reach, walk, kneel, talk, hear, climb stairs, see, remember, complete tasks,

21

concentrate, and get along with others. Id. Ms. Rogers further reported that Plaintiff is

22

able to walk for approximately twenty-five (25) to thirty (30) minutes before requiring ten

23

(10) to fifteen (15) minutes of rest. Id. Ms. Rogers noted that Plaintiff can pay attention

24

for approximately five (5) minutes, and cannot follow spoken instructions because he does

25

not remember or hear all of them, but is better with written instructions. AR at 207. Ms.

26

Rogers described Plaintiff as being able to get along with authority figures for short

27

periods, but that he cannot handle stress or changes in routine. Id. at 208.

28

Ms. Rogers also reported that Plaintiff attempted suicide in October 2014, and

- 32 -

1

mentioned that he also tried to protect her from unknown attackers. Id. Ms. Rogers

2

indicated that Plaintiff relies on a cane and hearing aid, but the neuro-stimulator that he has

3

is no longer working. Id. Ms. Rogers noted that Plaintiff is on a great deal of medication,

4

mostly to treat his night terrors and mood from PTSD. Id. at 209. Ms. Rogers further

5

reported that Plaintiff is unaware of his mood, which is a problem at home with their

6

children, and if he does not take his mirtazapine, he reenacts his horror on her in his sleep.

7

AR at 209.

8

medication. Id. Ms. Rogers also described Plaintiff as having an inability to function in

9

large groups, as well as a lack of filter when speaking. Id.

Ms. Rogers described Plaintiff as very volatile and unstable without

10
11
12

II.

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

13

based upon substantial evidence and there is no legal error.

14

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

15

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

16

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

17

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

18

also Treichler v. Comm’r of Soc. Sec. Admin., 775 F.3d 1090, 1098 (9th Cir. 2014).

42 U.S.C. §§ 405(g),

19

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

20

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

21

871, 873 (9th Cir. 2003)); see also Garrison v. Colvin, 759 F.3d 995, 1009 (9th Cir. 2014).

22

Further, substantial evidence is “such relevant evidence as a reasonable mind might accept

23

as adequate to support a conclusion.” Parra v. Astrue, 481 F.3d 742, 746 (9th Cir. 2007).

24

Where “the evidence can support either outcome, the court may not substitute its judgment

25

for that of the ALJ.” Tackett, 180 F.3d at 1098 (citing Matney v. Sullivan, 981 F.2d 1016,

26

1019 (9th Cir. 1992)); see also Massachi v. Astrue, 486 F.3d 1149, 1152 (9th Cir. 2007).

27

Moreover, the court may not focus on an isolated piece of supporting evidence, rather it

28

must consider the entirety of the record weighing both evidence that supports as well as

- 33 -

1

that which detracts from the Secretary’s conclusion. Tackett, 180 F.3d at 1098 (citations

2

omitted).

3
4

III.

ANALYSIS

5

A.

The Five-Step Evaluation

6

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

7

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

8

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

9

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

10

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

11

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

12

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

13

disabled; step four considers the claimant’s residual functional capacity and past relevant

14

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

15

assesses the claimant’s residual functional capacity, age, education, and work experience.

16

If it is determined that the claimant can make an adjust6ment to other work, then he or she

17

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

18

In the instant case, the ALJ found that Plaintiff had not engaged in substantial

19

gainful activity since his alleged onset date of June 11, 2014. AR at 16. At step two of the

20

sequential evaluation, the ALJ found that “the claimant has the following severe

21

impairments: right foot impairment; lumbar degenerative disc disease, affective disorder;

22

anxiety disorder, post-traumatic stress disorder (PTSD); and personality disorder (20 CFR

23

404.1520(c)).” Id. The ALJ further found that “[t]he claimant does not have an impairment

24

or combination of impairments that meets or medically equals the severity of one of the

25

listed impairments in 20 CFR Part 404, Subpart P, Appendix 1 (20 CFR 404.1520(d),

26

404.1525 and 404.1526).” Id. at 17. Prior to step four and “[a]fter careful consideration

27

of the entire record,” the ALJ determined that “the claimant has the residual functional

28

capacity to perform medium work as defined in 20 CFR 404.1567(c) with certain additional

- 34 -

1

non-exertional limitations[][—][s]pecifically, assigned work must be limited to simple

2

repetitive tasks learned in 30 days or less or through a brief on the job demonstration[,] . .

3

. the assigned tasks must involve minimal changes as assigned[,] . . . [and] contact with

4

coworkers, supervisors and the public must be limited to occasionally.” Id. at 18. At step

5

four, the ALJ found that “[t]he claimant is unable to perform past relevant work.” Id. at

6

23. At step five, the ALJ found that after “[c]onsidering the claimant’s age, education,

7

work experience, and residual functional capacity, there are jobs that exist in significant

8

numbers in the national economy that the claimant can perform (20 CFR 404.1569 and

9

404.1569(a)).” AR at 23. Accordingly, the ALJ determined that Plaintiff was not disabled.

10

Id. at 24.

11

Plaintiff asserts that the ALJ erred in failing to discuss the opinion of reviewing

12

physician James Sturgis, M.D. and in rejecting the opinion of reviewing physician David

13

Bailey, Ph.D., as well as finding Plaintiff partially credible. See Opening Br. (Doc. 17).

14
15

B.

Plaintiff’s Symptoms
1. Legal standard

16

An ALJ must engage in a two-step analysis to evaluate a claimant’s subjective

17

symptom testimony. Lingenfelter v. Astrue, 504 F.3d 1028, 1035–36 (9th Cir. 2007). First,

18

“a claimant who alleges disability based on subjective symptoms ‘must produce objective

19

medical evidence of an underlying impairment which could reasonably be expected to

20

produce the pain or other symptoms alleged[.]’” Smolen v. Chater, 80 F.3d 1273, 1281–

21

82 (9th Cir. 1996) (quoting Bunnell v. Sullivan, 947 F.2d 341, 344 (9th Cir. 1991) (en banc)

22

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

23

2014). Further, “the claimant need not show that her impairment could reasonably be

24

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

25

could reasonably have caused some degree of the symptom.” Smolen, 80 F.3d at 1282

26

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

27

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

28

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

- 35 -

1

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

2

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

3

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

4

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

5

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

6

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

7

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

8

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

9

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

10

2. ALJ findings

11

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

12

testimony. AR at 18–19. The ALJ then stated, “[a]fter considering the evidence of record,

13

I find the medically determinable impairments could reasonably be expected to produce

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the alleged symptoms[;] [h]owever, the claimant’s statements concerning the intensity,

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persistence and limiting effects of these symptoms are not entirely consistent with the

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medical evidence and other evidence in the record for the reasons explained in this

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decision.” Id. at 19. The ALJ reviewed the medical record and rejected Plaintiff’s

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symptom testimony because 1) Plaintiff’s back pain was only being treated by pain

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medication and he declined all other methodologies; 2) his activities of daily living were

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“strenuous” in the ALJ’s opinion and therefore “his complaints of pain are not as severe as

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alleged”; and 3) Plaintiff only had “minimal psychotherapy and counseling for reported

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anger problems . . . [and] appears to enjoy spending time with his family, friends, and he

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continues to socialize on occasion, which further confirms he is mentally stable. Id. at 19–

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20.

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a. Back Pain

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The ALJ acknowledged that “claimant has a history of low back and foot pain.” AR

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at 19. The ALJ went on, however, to misstate the medical record in her analysis. The ALJ

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noted that Plaintiff’s spinal cord stimulator was not working, yet he was still able “to twist

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and bend forward to bring fingers to just below the knees with no difficulties.” Id. (citations

2

omitted). The ALJ clearly believes that Plaintiff’s spinal cord stimulator was to treat his

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back pain, when its purpose was to treat his foot pain. See AR at 319, 358, 761–65 (failed

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surgery to correct a Morton’s neuroma led to implantation of a spinal cord stimulator). The

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ALJ also discounts Plaintiff’s consistent use of a cane, which was replaced by a walker

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when he was hospitalized. See, e.g., AR at 743–61. The ALJ’s misstatement of the medical

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records is legal error.

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b. Activities of Daily Living

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The ALJ stated that “[t]he claimant also reported he spends his time most days

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outside working on his truck, which is inconsistent with complaints of disabling pain.” AR

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at 19. The ALJ further stated that Plaintiff cooks “a lot”; however, Plaintiff’s testimony,

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corroborated by his wife, clearly indicated that he only cooks ramen on a regular basis. Id.

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at 204, 215. The ALJ also stated that Plaintiff was remodeling his kitchen. Id. at 20. This,

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too, seems to be a misstatement of the record. Plaintiff received Home Improvements and

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Structural Alterations (“HISA”) grants through Veterans Affairs in which workers were

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hired to perform remodeling. See AR at 579–80, 947–48.

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“[T]he claimant need not show that [his] impairment could reasonably be expected

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to cause the severity of the symptom []he has alleged; []he need only show that it could

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reasonably have caused some degree of the symptom.” Smolen, 80 F.3d at 1282 (citations

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

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

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thereof.’” Garrison v. Colvin, 759 F.3d 995, 1014 (9th Cir. 2014) (quoting Smolen, 80

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F.3d at 1282). “[A]n ALJ may not disregard [a claimant’s testimony] solely because it is

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not substantiated by objective medical evidence[.]” Trevizo, 871 F.3d at 679 (citations

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

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

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

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periodically or take medication.”

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

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Garrison, 759 F.3d at 1016 (impairments that would preclude work are often consistent

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with doing more than spending each day in bed).

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The Ninth Circuit Court of Appeals has “repeatedly warned that ALJs must be

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especially cautious in concluding that daily activities are inconsistent with testimony about

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pain, because impairments that would unquestionably preclude work and all the pressures

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of a workplace environment will often be consistent with doing more than merely resting

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in bed all day.” Garrison, 759 F.3d at 1016 (citations omitted). Furthermore, “[t]he Social

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Security Act does not require that claimants be utterly incapacitated to be eligible for

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benefits, and many home activities may not be easily transferable to a work environment

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where it might be impossible to rest periodically or take medication.” Smolen, 80 F.3d at

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1287 n. 7 (citations omitted). The Ninth Circuit Court of Appeals has noted:

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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.
Garrison, 759 F.3d at 1016 (quoting Bjornson v. Astrue, 671 F.3d 640, 647 (7th Cir. 2012))
(alterations in original). “While ALJs obviously must rely on examples to show why . . .
a claimant[’s] [symptoms are inconsistent with the evidence in the record] . . . the data
points they choose must in fact constitute examples of a broader development to satisfy the
applicable ‘clear and convincing’ standard.” Id. at 1018 (emphasis in original) (discussing
mental health records specifically).
Here, Plaintiff showed a medically determinable physical impairment that could
reasonably be expected to produce the symptoms, and there is no evidence of malingering.
The ALJ erred by misstating the evidence and discounting Plaintiff’s symptom testimony
on the basis of his daily activities.
c. Behavioral health
The ALJ opined that Plaintiff’s “treatment for PTSD has generally been stable and

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he has continued routine medication management sessions at the Veteran [sic] Affairs

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hospital” and described his hospitalization for homicidal ideations as “exacerbations.” AR

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at 20. The ALJ also stated that “the record reflects minimal psychotherapy and counseling

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for reported anger problems[,] . . . despite recommendation for treatment from his doctors

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and concurrence with this recommendation by his wife.” Id.

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Regarding mental health issues, “it is error to reject a claimant’s testimony merely

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because symptoms wax and wane in the course of treatment.” Garrison v. Colvin, 759

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F.3d 995, 1017 (9th Cir. 2014). “Psychiatric evaluations may appear subjective, especially

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compared to evaluation in other medical fields[,] [and] [d]iagnoses will always depend in

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part on the patient’s self-report, as well as on the clinician’s observations of the patient[,]

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but such is the nature of psychiatry.” Buck v. Berryhill, 869 F.3d 1040, 1049 (9th Cir.

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2017). The ALJ is required to consider the “context of the overall diagnostic picture” and

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remember “[t]hat a person who suffers from severe panic attacks, anxiety, and depression

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makes some improvement does not mean that the person’s impairments no longer seriously

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affect her ability to function in a workplace.” Holohan v. Massanari, 246 F.3d 1195, 1205

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(9th Cir. 2001). Plaintiff’s medical record consistently acknowledge Plaintiff’s PTSD and

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anger issues, in addition to other mental health diagnoses. AR at 300–07, 330–32, 352–

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53, 550–54, 590–97, 690–710, 743–61, 768–73, 800–807, 819–25, 829–41, 870–80, 1172–

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77, 1288–1356, 1378–83, 1414–16. The ALJ’s findings are inconsistent with the medical

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record and therefore legally insufficient to discount Plaintiff’s symptom testimony.

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C.

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“The Commissioner concedes that the ALJ erred in disregarding the medical

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opinion of the State agency psychological consultant James Sturgis, Ph.D.” Response

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(Doc. 21) at 2. Defendant seeks remand for further proceedings, rather than benefits.

Reviewing Physician Testimony

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D.

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A federal court may affirm, modify, reverse, or remand a social security case. 42

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U.S.C. §405(g). “‘[T]he decision whether to remand the case for additional evidence or

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simply to award benefits is within the discretion of the court.’” Rodriguez v. Bowen, 876

Remand

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F.2d 759, 763 (9th Cir. 1989) (quoting Stone v. Heckler, 761 F.2d 530, 533 (9th Cir. 1985)).

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“Remand for further administrative proceedings is appropriate if enhancement of the record

3

would be useful.” Benecke v. Barnhart, 379 F.3d 587, 593 (9th Cir. 2004) (citing Harman

4

v. Apfel, 211 F.3d 1172, 1178 (9th Cir. 2000)). Conversely, remand for an award of benefits

5

is appropriate where:

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(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.
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 and
failing to address the opinions of reviewing physicians. Defendant urges that conflicts such
as Dr. Sturgis’s opinion that Plaintiff could not sustain a forty (40) hour work week versus
the initial finding of not disabled and Plaintiff’s subjective complains versus his activities
of daily living require remand for further proceedings. Regarding the initial “conflict” and
as Plaintiff indicates, “Mr. Rogers should have been awarded at his initial application based
on Dr. Sturgis’ report.” Reply (Doc. 22) at 4. “Allowing the Commissioner to decide the
issue again would create an unfair ‘heads we win; tails, let’s play again’ system of disability
benefits adjudication.” Benecke v. Barnhart, 379 F.3d 587, 595 (9th Cir. 2004) (citations
omitted). The Court finds that the record is well developed and no outstanding issues must
be resolved before a determination of benefits can be made. The Court further finds that it
is clear from the record that the ALJ would be required to find the claimant disabled were
such evidence properly credited.

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IV.

CONCLUSION
In light of the foregoing, the Court REVERSES the ALJ’s decision and the case is

REMANDED for further proceedings consistent with this decision.

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Accordingly, IT IS HEREBY ORDERED that:

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1)

Plaintiff’s Opening Brief (Doc. 1) is GRANTED;

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2)

The Commissioner’s decision is REVERSED and REMANDED for

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calculation and award of benefits. 42 U.S.C. § 405(g); and
3)

The Clerk of the Court shall enter judgment, and close its file in this matter.

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Dated this 16th day of September, 2019.

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