Opinion
CV 21-00722 PHX JJT (CDB)
08-18-2022
Roderick Rex Bullock, Plaintiff, v. Commissioner of Social Security Administration, Defendant.
REPORT AND RECOMMENDATION
Camille D. Bibles United States Magistrate Judge
TO THE HONORABLE JOHN J. TUCHI:
The case was referred to Magistrate Judge for all pretrial proceedings and a report and recommendation in accordance with the provisions of 28 U.S.C. § 636(b)(1) and Rules 72.1 and 72.2 of the Local Rules of Civil Procedure for the District of Arizona. The matter is fully briefed and ready for the Court's review.
I. Procedural Background
Bullock filed an application for Title II Social Security disability insurance benefits on June 23, 2016. (ECF No. 16-3 at 20, ECF No. 16-6 at 12-16). Bullock filed an application for Supplemental Security Income (“SSI”) benefits on April 17, 2017. (ECF No. 16-3 at 20; ECF No. 16-6 at 2-10). In both applications Bullock alleged disability beginning April 2, 2015, due to back problems, post-traumatic stress disorder (“PTSD”), osteoarthritis in his back, hip, knee, and ankle, high blood pressure, and anxiety. (ECF No. 16-4 at 4-5; ECF No. 16-6 at 3; ECF No. 16-7 at 3-10). The claims were denied initially on June 26, 2017, and upon reconsideration on January 3, 2018. (ECF No. 16-4 at 2-3, 38-40; ECF No. 16-5 at 6-9, 20-23). Bullock requested a hearing before an Administrative Law Judge (“ALJ”), which was conducted October 16, 2019. (ECF No. 16-3 at 37-58). Bullock was represented by counsel at the hearing. (ECF No. 16-3 at 37). In a decision entered February 10, 2020, the ALJ concluded Bullock suffered from the sever impairments of lumbar post-laminectomy syndrome, obesity, anxiety, and major depressive disorder with PTSD features. (ECF No. 16-3 at 23). The ALJ concluded Bullock did not have an impairment or combination of impairments that met or medically equaled the severity of a listed impairment. (ECF No. 16-3 at 24). The ALJ determined Bullock had the residual functional capacity (“RFC”) to perform light work with some exceptions. (ECF No. 16-3 at 26-29). The ALJ also found Bullock was unable to perform his past relevant work as an emergency medical technician, but could perform jobs existing in significant numbers in the national economy, and, accordingly, that Bullock was not “disabled.” (ECF No. 16-3 at 29-31).
Bullock sought review of the ALJ's decision by the Social Security Appeals Council. The Appeals Council denied relief on February 21, 2021 (ECF No. 16-3 at 2-7), making the ALJ's decision the final, appealable decision of the Commissioner.
II. Governing Law
Disability insurance benefits pursuant to Title II are paid to disabled persons who have contributed to the Social Security program regardless of financial need. 42 U.S.C. §§ 401-425. Supplemental Security Income (“SSI”) benefits pursuant to Title XVI are paid to disabled “financially needy individuals,” regardless of their insured status. 42 U.S.C. §§ 1382-1383; Smith v. Berryhill, 139 S.Ct. 1765, 1771-72 (2019). Under both programs, disability is defined as an “inability to engage in any substantial gainful activity” due to “a medically determinable physical or mental impairment.” 42 U.S.C. § 423(d)(1)(a).
To establish eligibility for Social Security benefits based on disability, the claimant must show: (1) he suffers from a medically determinable physical or mental impairment that can be expected to result in death or that has lasted or can be expected to last for a continuous period of not less than twelve months, see 20 C.F.R. § 423(d)(1)(A); and (2) the impairment renders the claimant incapable of performing the work that the claimant previously performed and incapable of performing any other substantial gainful employment that exists in the national economy. Id. § 423(d)(2)(A). If a claimant meets both of these requirements, he is by definition “disabled.” See, e.g., Frost v. Barnhart, 314 F.3d 359, 365 (9th Cir. 2002). To be entitled to disability insurance benefits pursuant to Title II, the claimant must also establish they were either permanently disabled, or subject to a condition which became so severe as to disable them, prior to the date upon which their disability insured status expired, i.e., prior to their “date last insured” for benefits. See Tidwell v. Apfel, 161 F.3d 599, 601 (9th Cir. 1998).
Bullock's date last insured for Title II benefits was September 30, 2019.
A five-step sequential evaluation governs eligibility for disability-based benefits under both Title II and Title XVI. See 20 C.F.R. §§ 404.1520 & 416.920; Barnhart v. Thomas, 540 U.S. 20, 24 (2003); Bowen v. Yuckert, 482 U.S. 137, 140-42 (1987). First, the claimant must establish he is not gainfully employed at the time of his application. See 20 C.F.R. § 404.1520(a)(4)(i). Next, the claimant must be suffering from a “medically severe” impairment or “combination of impairments.” Id. § 404.1520(a)(4)(ii). The third step is to determine whether any of the claimant's impairments meets or equals one of the “listed” impairments included in Appendix 1 to this section of the Code of Federal Regulations. See 20 C.F.R. § 404.1520(a)(4)(iii). If any of the claimant's impairments meets or equals one of the impairments listed in Appendix 1, the claimant is conclusively “disabled.” See id.
The fourth step of the process requires the ALJ to determine whether the claimant, despite his impairments, can perform work similar to work he has performed in the past. This requires the ALJ to make an assessment of the plaintiff's “residual functional capacity” to do work-related tasks on a sustained basis. A claimant whose “residual functional capacity” allows him to perform his “past relevant work,” despite his impairments, is denied benefits. Id. § 404.1520(a)(4)(iv).
The claimant bears the burden of proof throughout the first four steps of the evaluation. See Hill v. Astrue, 698 F.3d 1153, 1161 (9th Cir. 2012); Valentine v. Social Sec. Admin., 574 F.3d 685, 689 (9th Cir. 2009); Andrews v. Shalala, 53 F.3d 1035, 1040 (9th Cir. 1995). If the claimant cannot perform his past relevant work because of his impairments, the Commissioner proceeds to step five. At step five of the evaluation the burden shifts to the Commissioner to demonstrate that the claimant can perform other substantial gainful work that exists in the national economy, given his residual functional capacity. See 20 C.F.R. §§ 404.1520(a)(4)(v) & 416.920(a)(4)(v); Garrison v. Colvin, 759 F.3d 995, 1011 (9th Cir. 2014). In making this determination, the Commissioner must also consider vocational factors such as the claimant's age, education and past work experience. 20 C.F.R. §§ 404.1520(a)(4)(v); 416.920(a)(4)(v). If the claimant is capable of adjusting to other work, the Commissioner must find that the claimant is not disabled. 20 C.F.R. §§ 404.1520(g)(1); 416.920(g)(1). If the claimant is not capable of adjusting to other work, the analysis concludes with a finding that the claimant is disabled and is therefore entitled to benefits. 20 C.F.R. §§ 404.1520(g)(1); 416.920(g)(1).
III. Standard of Review
The Court's jurisdiction extends to review of the final decision of the Commissioner denying Bullock's application for Social Security disability-based benefits. See 42 U.S.C. § 405(g). Judicial review of a decision of the Commissioner is based upon the pleadings and the administrative record of the contested decision. See Id. The scope of the Court's review is limited to determining whether the ALJ applied the correct legal standards to Bullock's claims for benefits and whether the record as a whole contains substantial evidence to support the ALJ's findings of fact. See id. § 423; Allen v. Kijakazi, 35 F.4th 752, 756 (9th Cir. 2022); Ford v. Saul, 950 F.3d 1141, 1154 (9th Cir. 2020). Satisfying the substantial evidence standard requires more than a scintilla but less than a preponderance of record evidence. E.g., Biestek v. Berryhill, 139 S.Ct. 1148, 1154 (2019). Substantial evidence has been defined as the amount of relevant evidence a reasonable mind would accept as adequate to support a conclusion. Biestek, 139 S.Ct. at 1154; Woods v. Kijakazi, 32 F.4th 785, 788 (9th Cir. 2022); Garrison, 759 F.3d at 1009.
The phrase “substantial evidence” is a “term of art” used throughout administrative law to describe how courts are to review agency factfinding. T-Mobile South, LLC v. Roswell, [] 135 S.Ct. 808, 815 [] (2015). Under the substantial-evidence standard, a court looks to an existing administrative record and asks whether it contains “sufficien[t] evidence” to support the agency's factual determinations. Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229 [] (1938) (emphasis deleted). And whatever the meaning of “substantial” in other contexts, the threshold for such evidentiary sufficiency is not high.Biestek v. Berryhill, 139 S.Ct. 1148, 1154 (2019).
The Court must consider the record evidence in its entirety, weighing both the evidence that supports and detracts from the ALJ's conclusion. Luther v. Berryhill, 891 F.3d 872, 875 (9th Cir. 2018). A reviewing court must consider the entire record and may not affirm the Commissioner's denial of benefits by isolating a specific quantum of supporting evidence. Trevizo v. Berryhill, 871 F.3d 664, 675 (9th Cir. 2017); Revels v. Berryhill, 784 F.3d 648, 654 (9th Cir. 2017). “The ALJ is responsible for determining credibility, resolving conflicts in medical testimony, and for resolving ambiguities.” Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995), quoted in Garrison, 759 F.3d 1010. Where “the evidence can reasonably support either affirming or reversing a decision,” the Court may not substitute its judgment for that of the ALJ. Garrison, 759 F.3d at 1010. See also Tommasetti v. Astrue, 533 F.3d 1035, 1038 (9th Cir. 2008). “Where evidence is susceptible to more than one rational interpretation, it is the ALJ's conclusion that must be upheld.” Shaibi v. Berryhill, 883 F.3d 1102, 1108 (9th Cir. 2017) (internal quotations omitted). And if an ALJ's legal error was harmless, i.e., if there is substantial evidence in the record to support the ALJ's conclusion on the challenged issue absent the legal error, the case need not be remanded for further proceedings. See, e.g., Ford v. Saul, 950 F.3d 1141, 1154 (9th Cir. 2020); Zavalin v. Colvin, 778 F.3d 842, 845 (9th Cir. 2015). An error is harmless if “it was inconsequential to the ultimate nondisability determination.” Ford, 950 F.3d at 1154 (internal quotations omitted).
IV. Record on Appeal
Bullock was 49 years old on the alleged onset date (born in August of 1965), and he was 54 years old on the date of the ALJ's decision denying benefits. (ECF No. 16-6 at 12). In his Disability Report, filed by counsel on April 22, 2017, Bullock reported completing two years of college, i.e., paramedic training. (ECF No. 16-7 at 5). He reported working as a paramedic from May through October of 2008 and October of 2013 through April of 2015. (ECF No. 16-7 at 5-6). He averred he was disabled due to back problems; PTSD; osteoarthritis in his back, hip, knee, and ankle; high blood pressure; and anxiety. (ECF No. 16-7 at 4). He reported he stopped working because of his conditions and for “other reasons.” (ECF No. 16-7 at 5). With regard to why Bullock “stopped working,” he stated he was “[f]ired due to condition.” (ECF No. 16-7 at 5).
An earnings report showed no earnings in 2003, 2004, 2005, 2009, 2010, and 2015, and minimal earnings in 2004. (ECF No. 16-6 at 24). It is unclear when Bullock ceased working- the applications filed by his counsel reported his date last worked as April 1, 2015 (ECF No. 167 at 4-5), but the earnings report showed no earnings in 2015, and at the ALJ hearing Bullock indicated he quit working in 2014. (ECF No. 16-3 at 46). The ALJ concluded in the written decision denying benefits that Bullock had no earnings since the alleged date of onset in 2015. Additionally, it appears Bullock did previously apply for disability benefits. The explanations of the decisions denying benefits includes the notation: “Prior ALJ allowance in 2005, but no available report, CDR cease disability on 04/2012.” (ECF No. 16-4 at 12, 13). In Bullock's application for reconsideration, there is an indication of a prior electronic filing for disability benefits: “Closed 01/26/2004,” with a “Decision Date 05/01/2012.” (ECF No. 16-4 at 43). In the Record on Appeal are records from 2012, i.e., a notation that Bullock appeared for a consultative physical examination on March 21, 2012 (ECF No. 16-8 at 10), and appeared for a consultative psychological examination on March 15, 2012 (ECF No. 16-8 at 3). In the denial of the instant claim is a notation regarding a prior assessment of residual functional capacity: “3/21/12 PH CE. Light RFC w/occ[asional] climbing, stooping, kneeling, freq[uent] L/R/S, crouch, reach, no crawling, no manipulation] limitations, no heights.” (ECF No. 16-4 at 11). In the initial denial of Bullock's instant claims, dated June 26, 2017, and signed by Dr. Mallik, the SSA states:
In order to make a complete determination on your claim, you were informed that we needed information regarding the work you have done for the past 15 years and information regarding your activities of daily living. You were contacted by mail in an attempt to obtain this information. However, you have not yet provided us with the necessary information. The medical records received concerning your conditions are insufficient to determine the severity of your impairments. We are unable to schedule an independent exam to evaluate your conditions because you have failed to provide the requested information. Therefore, due to the fact that there is insufficient information on which to base a complete determination regarding your disability, this claim is denied.(ECF No. 16-4 at 20).
Bullock challenges the ALJ's decision regarding his physical impairments and the ALJ's determination of his physical residual functional capacity, rather than his mental impairments and limitations. Accordingly, not all of the record on appeal discussing Bullock's mental impairments will be summarized infra.
Bullock was seen by a nurse practitioner (“NP”) at Honor Health on August 21, 2014. (ECF No. 16-13 at 27). He sought a refill of alprazolam (Xanax, used to treat anxiety), and he reported his “pain mgt treatment is working.” (ECF No. 16-13 at 27). He reported sleeping eight hours each night. (ECF No. 16-13 at 27). Diagnoses at that time were depression, anxiety, and hypertension. (ECF No. 16-13 at 28). Bullock told the NP was he was “pursuing nursing school.” (ECF No. 16-13 at 27).
Bullock was seen at The Pain Center on October 7, 2014, and reported he was employed. (ECF No. 16-15 at 25). He reported “mild” (“7/10”) neck and back pain, and that the pain did not interfere with his daily activities. (Id.). He stated an increased need for pain medication, telling the clinician the pain was more frequent. (Id.). The treatment notes state:
.. the pain medication is doing well for him. He stated that he did lose his unemployment and he did start a new job at the Cowboy Lounge working and overseeing the kitchen. Cooler temperature changes also can increase his back pain. He finds that without the medication he would not be as active.”(ECF No. 16-15 at 27). At that time Bullock's medications were tramadol (an opioid analgesic), oxycodone (an opioid), Soma (carisoprodol, a muscle relaxer) and MS Contin (morphine sulphate). (ECF No. 16-15 at 28).
When seen by the Honor Health NP on October 16, 2014, Bullock's medications were alprazolam and lisinopril (an ace inhibitor, for hypertension). (ECF No. 16-13 at 30). Bullock's blood pressure was high; he reported “increased stress” and that he was “currently replacing a roof for his brother. He [felt] both [the increased stress and replacing the roof could] be contributing to the elevation” of his blood pressure. (Id.). At that time Bullock had been diagnosed with viral meningitis, and he sought a referral to a neurologist. (ECF No. 16-13 at 33). Bullock reported “PV hospital found ‘something' on his cervical MRI . . . He is not pleased w pain mgt. His Morphine was discontinued he states because he was short due to cervical pain from menin[gitis]” (Id.). The NP added a diagnosis of “neck pain” to prior diagnoses of depression, anxiety, hypertension, and insomnia. (ECF No. 16-13 at 34).
Bullock was seen at The Pain Center on November 6, 2014. (ECF No. 16-15 at 20). He reported he was not employed. (Id.). Inter alia, he reported that “cold weather can flare up his cervical and low back pain. He finds that without the medication he would not be as active and unable to continue working. He finds that it does continue to keep his cervical and low back pain fairly tolerable and stable.” (ECF No. 16-15 at 22).
Bullock was seen at The Pain Center on December 4, 2014. (ECF No. 16-15 at 15). He reported his neck and back pain were “more severe,” and he had an increased need for pain medication. (Id.). His gait was slightly antalgic, and examination revealed a slightly limited range of motion in his neck and spine. (ECF No. 16-15 at 16-17). The physician's notes state:
The patient states that he did over escalate his MS Contin and does utilize his oxycodone yesterday. He stated morphine was not working and I did instruct him on office policy. I did instruct him if there are any other inconsistencies he will be discharged from the practice. The patient's last urine tox was absent for his MS Contin. He was instructed that he must call if the pain medication is not working to get an earlier [sic] and not take it upon himself to over escalate his medication. Patient states that he is up at Pine Top and working there and the cold can flare up his low back pain.(Id.).
Bullock was seen at The Pain Center on January 5, 2015. (ECF No. 16-15 at 7). He reported headache, neck pain, and back pain, rating the pain as a 9/10 and severe, and reporting the pain interfered “with most but not all daily activities.” (Id.). The doctor noted a “slightly antalgic” gait. (ECF No. 16-15 at 8). Bullock reported the neck and low back pain were a “constant ache of varying intensities.” (ECF No. 16-15 at 9-10).
Bullock was seen at The Pain Center on February 3, 2015. (ECF No. 16-15 at 12). He rated his neck and back pain as a 7/10, and reported that it interfered “only with some daily activities.” (Id.). He reported an increased need for pain medication. Id.). The doctor noted: “Tender to palpation bilateral lumbar paraspinous musculature positive facet loading maneuvers. No lower extremity weakness.” (ECF No. 16-15 at 13). The doctor also noted: “He had excellent relief with lumbar [radiofrequency neurotomy] performed in the past, he has return of pain with positive facet loading maneuvers.” (Id.).
Bullock was seen at The Pain Center on March 3, 2015. (ECF No. 16-15 at 3). He reported he was not employed, and complained of neck and back pain. (Id.). He rated the pain as a 5/10, and reported the pain did not interfere with his daily activities. (Id.). He reported his medications as oxycodone, MS Contin, Sonata (a sedative used to treat insomnia), tramadol, Zanaflex (tizanidine, a muscle relaxant), Xanax, hydrochlorothiazide (a diuretic), and lisinopril. (ECF No. 16-15 at 4). Upon examination the doctor observed normal gait. (ECF No. 16-15 at 5). The doctor noted chronic low back pain and lumbar post-laminectomy syndrome, also noting Bullock had discontinued benzodiazepine and Ambien. (Id.). Because Bullock had discontinued these medications, and because Bullock was having “worsening muscle spasm,” the doctor provided “a very small prescription of Valium [a benzodiazepine].” (Id.).
Bullock was seen by the NP at Honor Health on March 13, 2015. (ECF No. 16-13 at 36). Bullock was “having increased pain due to his pain meds being cut by pain mgt.” (ECF No. 16-13 at 40). Bullock was still “not pleased with pain mgt. He states they stopped giving him Soma and he has been having back and neck spasms. He indicates they also want to give him steroids instead of pain meds.” (ECF No. 16-13 at 37). Bullock “feels his pain has increased his BP and anxiety.” (ECF No. 16-13 at 40). The NP noted back pain and a “gait problem,” but no neck pain. (ECF No. 16-13 at 38). The NP also noted lumbar decreased range of motion, tenderness, pain and spasm. (Id.). She also noted: “Shoulder dislocation, right, initial encounter,” and gave Bullock a referral to orthopedic surgery and ordered an MRI of the right shoulder. (Id.).
Bullock's alleged date of the onset of disability is April 2, 2015.
Bullock was seen at Honor Health on April 9, 2015. His prescriptions were listed as alprazolam, hydrochlorothiazide, lisinopril, morphine, oxycodone, and tramadol. (ECF No. 16-13 at 40). Bullock complained of increased pain, reported that he did not want steroid treatment, and asked for a referral to a new pain management provider. (Id.). The doctor noted Bullock was “early” for a refill of Xanax. (ECF No. 16-13 at 44). Bullock was “having a lot of anxiety due to multiple provider appts/specialty testing.” (Id.).
Bullock went to the emergency room on September 15, 2015, complaining of shortness of breath. (ECF No. 16-14 at 55). The doctor noted chronic low back pain and that Bullock was “on opiates.” (Id.). Bullock reported chest tightness, and non-radiating constant right “flank pain.” (Id.). On examination, there was no cervical, thoracic, or lumbar spine tenderness with palpation. (ECF No. 16-14 at 56). Bullock was diagnosed with acute bronchitis, with a notation of chronic back pain. (ECF No. 16-14 at 58). Bullock was prescribed albuterol and prednisone. (ECF No. 16-14 at 55).
Bullock was seen at Honor Health on October 14, 2015. (ECF No. 16-13 at 47). He was “due to have electrodes implanted in two wks for pain control. He also has torn R rotator cuff that he may need surgery for.” (ECF No. 16-13 at 48). Upon examination the NP recorded back pain, decreased range of motion, tenderness, pain, spasm, and decreased strength in the right shoulder. (Id.). Bullock also displayed decreased range of motion, tenderness, pain, and spasm in his lumbar back. (ECF No. 16-13 at 49).
Bullock was seen at the emergency room on November 10, 2015, complaining of shortness of breath, coughing, and wheezing. (ECF No. 16-14 at 60). He was diagnosed with pneumonia and put on medications for this illness. (ECF No. 16-14 at 65). Bullock reported a history of chronic back pain, and also reported he had two recent MRIs. (Id.). He also reported his “legs feel weak at times.” (Id.). The doctor noted Bullock ambulated “without difficulty.” (ECF No. 16-14 at 67).
Bullock was seen at Honor Health on November 13, 2015. (ECF No. 16-13 at 60). He was seen for a follow-up on the pneumonia diagnosis, referral to a new pain management practice, and to refill his anxiety medication. (Id.). Bullock requested a new pain management provider because “the current one wants to do only injections.” (Id.).
On an Intensive Treatment Systems (a methadone treatment provider) admissions form dated November 30, 2015, Bullock reported no “mental health issues” (ECF No. 1616 at 3, 5), but also reported he had been diagnosed with PTSD. (ECF No. 16-16 at 5). He reported having used opiates, i.e., oxycodone and/or morphine, since an accident in 1998, and also reported he had “started abusing prescription.” (ECF No. 16-16 at 3).
Bullock went to the Abrazo Scottsdale emergency room on December 31, 2015, complaining of “acute onset generalized body twitching,” believed to be related to “stopping xanax 4 days ago.” (ECF No. 16-14 at 69). The doctor noted the associated diagnoses of benzodiazepine withdrawal, chronic low back pain, history of anxiety, tachycardia, and elevated serum creatinine. (Id.). Bullock reported he had been “taking xanax since early 2000's for anxiety, PTSD. Trying to get off xanax so he can take methadone for [lower back pain].” (Id.). Bullock denied weakness in his extremities. (Id.). The doctor noted no spine tenderness with palpation, and that Bullock ambulated “with regular steady gait.” (ECF No. 16-14 at 70).
Bullock was seen by the NP at Honor Health on January 4, 2016. (ECF No. 16-13 at 63). The treatment notes state: “He has converted from opioids to methadone and feels this change has been controlling his pain. He tried to titrate himself off xanax and started to have withdrawal” symptoms. (Id.). The NP noted Bullock's recent ER visit and that Bullock was “planning on referring himself to mental health for treatment and counseling recommendations.” (Id.).
A behavioral health assessment, regarding Bullock's methadone treatment, was completed at Intensive Treatment Systems on March 4, 2016. (ECF No. 16-16 at 100-08). Bullock stated that he experienced work difficulties and/or limitations because of his opioid dependency, i.e., he stated that his “addiction” was a “barrier to employment.” (ECF No. 16-16 at 100, 104). Bullock reported no prior surgeries or motor skills impairments, and no cognitive impairments or social skills deficits. (ECF No. 16-16 at 103). He reported he had been using “pain pills” for the prior sixteen years, beginning in 1998, and stated he had “been on methadone” for “10 years.” (ECF No. 16-16 at 104). With regard to any current “psychotropic medication” or “medication targeting medical issues,” Bullock reported “None.” (ECF No. 16-16 at 102). He stated ne had “‘No Kids.'” (Id.). With regard to activities of daily living, he denied any problems with bathing, grooming, feeding himself, dressing, mobility, performing housework, and shopping. (ECF No. 16-16 at 105). With regard to describing a “typical day,” he replied: “I get up come to the clinic and hang with my brother.” (Id.). The assessment reported his gait, posture, and motor activity were all “normal.” (Id.). Bullock did not use a cane. (Id.). Bullock told the examiner he “has his own transportation;” he was then “not working or looking at this time due to his back injury;” and he “denied any significant medical issues at this time other than his broken back he suffered in 1998.” (ECF No. 16-16 at 107). He “denied any mental health diagnosis, denied any current [treatment] with any provider and declined to allow COC with any provider.” (Id.). He stated he was “able to transport self to and from ITS, [and] able to attend scheduled appointments.” (Id.).
Bullock was seen at Crisis Preparation & Recovery (“CPR,” a mental health clinic) on March 30, 2016. (ECF No. 16-9 at 44). He reported “‘mentally it's been a horror ride for the past two weeks.'” (Id.). Bullock reported he got “stuck in his dreams” when taking Seroquel and experienced nightmares and night sweats. (Id.). He reported “highly elevated” anxiety levels, although he reported that “overall” his depression had “improved.” (Id.). He reported “now doing things he [hadn't] done in 10 years,” such as going to a “star wars movie w/ his son and really [enjoying] it.” (Id.). He had seen a new grandson, and he was “much more . . . able to enjoy things compared to previously.” (Id.).
Bullock went to the emergency room on April 5, 2016, complaining of neck and low back pain. (ECF No. 16-14 at 73). He reported the pain was chronic “but a bit worse than usual.” (Id.). The notes indicate “he went to stand up today and his back pain spiked and his legs went numb and he fell forward striking his head. ... pain is moderate and worse with movement.” (Id.). Bullock reported his medications as clonidine (for hypertension) and hydrochlorothiazide, and the doctor prescribed Ativan (a benzodiazepine). (Id.). Upon examination the doctor noted “mid lumbar and paralumbar ttp diffusely, negative straight leg raises bilaterally,” and a “slightly antalgic gain 2ndry to pain.” (ECF No. 16-14 at 74).
Bullock was seen at Honor Health on April 7, 2016. (ECF No. 16-13 at 66). He complained of numbness in his limbs and “increased tremors in [right] leg for the past month.” (Id.). The NP noted he received “pain mgt for chronic neck and low back pain. His pain has been controlled with pain meds and steroid injections.” (Id.). Upon examination the NP noted back pain and tremors, and Bullock was referred to a neurologist. (ECF No. 16-13 at 67).
On April 18, 2016, when seen at CPR, Bullock reported having “‘a pretty good week, less panic.'” (ECF No. 16-9 at 41). He told the practitioner he had “‘been going to restaurants more .. .'” stating: “‘I haven't done that in years.'” (Id.).
When seen at CPR on May 4, 2016, Bullock reported anxiety and fear arising from the suggestion that he wean from Xanax, stating “When I go down on the Xanax I start jerking constantly ...” (ECF No. 16-9 at 31-32). He reported the jerking was causing him to “spill and drop things,” and that the prior week he “woke up in [his] backyard,” having “no memory of doing that.” (ECF No. 16-9 at 32).
Bullock was seen at Honor Health on May 9, 2016. (ECF No. 16-13 at 68). His medications were listed as clonidine, escitalopram (Lexapro, a SSRI), hydrochlorothiazide, lisinopril, omeprazole (Prilosec, for heartburn), and prazosin (for hypertension). (ECF No. 16-13 at 68). Bullock was seen for “involuntary muscle twitching for the past several weeks.” (Id.). The NP noted Bullock suffered “chronic back pain, anxiety and depression. He is a former EMT and his medical status has declined over the past several months. He sustained two falls in our lobby today.” (ECF No. 16-13 at 67). Upon examination Bullock exhibited decreased range of motion, tenderness, and pain and spasm in his lumbar back. (ECF No. 16-13 at 69). He was transferred to the emergency room for evaluation and treatment. (ECF No. 16-13 at 70).
On May 10, 2016, Bullock presented to Banner Thunderbird Medical Center regarding a “syncopal episode” while at his primary care physician's office, followed by a seizure while in the ambulance. (ECF No. 16-8 at 22). The consulting neurologist's notes indicate Bullock had a history of hypertension, hyperlipidemia, chronic pain, and anxiety. (Id.). The treatment notes state: “Patient with seizures during withdrawal off Xanax,” and a “[l]engthy discussion with Patient and RN.” (ECF No. 16-8 at 21). A history of chronic back and neck pain were noted, as well as PTSD. (ECF No. 16-8 at 22). Medications included Xanax “daily for 20 years,” as well as oxycodone, morphine, and Soma for pain, and the treatment notes indicated that Bullock had “been undergoing a taper of all medications through his pain clinic.” (Id.). The notes also state Bullock “sleeps 2 hours a night every couple days, and drinks 2 full liters of coca cola daily. He currently is retired and lives with his alcoholic brother who he fights with daily.” (Id.).
The Honor Health NP's notes from May 12, 2016:
He was sent to BTMC two days ago for muscle twitching and seizures due to Xanax withdrawal. He had titrated himself down to 0.5 mg twice daily and was told not to take xanax due to his Methadone use. He feels the methadone is controlling his pain. He was told by mental health that [he is] allowed to take Valium. His muscle twitching has stopped since restarting the Xanax 2 mg bid.(ECF No. 16-13 at 71). With regard to Bullock's anxiety, the NP noted: “The onset of the illness is precipitated by a stressful event. The degree of incapacity that he is experiencing as a consequence of his illness is moderate. Sequelae of the illness include an inability to work.” (ECF No. 16-13 at 72). The NP also noted symptoms did not include fatigue, agitation, attention impairment, poor judgment, psychomotor retardation, or distractibility. (Id.). The NP noted the seizures were “a new problem. The current episode started more than 1 week ago.” (Id.). The symptoms included “rhythmic jerking and loss of consciousness,” and that the “possible causes” included “missed seizure meds.” (Id.).
When seen at Honor Health on May 20, 2016, Bullock reported feeling “so much better since converting to Valium. He has no anxiety and his muscle stiffness has resolved. He was out working on his brother's truck this a.m. and his mood is good.” (ECF No. 16-13 at 75). No back pain or decreased range of motion is reflected in the notes of the examination.
Bullock was seen at CPR on May 26, 2016. He reported involuntary muscle movement, noting his recent seizure in the ambulance while en route to the hospital. (ECF No. 16-9 at 21). He reported that, after being prescribed Valium: “‘I feel great. .. I feel good now ... I feel like I'm going a mile a minute.'” (Id.). He told the provider: “‘I haven't had any flashbacks/nightmares ... I've been completely ecstatic'.” (ECF No. 169 at 21). Bullock opined the seizure at his doctor's office was “‘from going down on Xanax'” and that, although the hospital neurologist had diagnosed him with epilepsy, he believed it was “just medication reduction reactions.” (ECF No. 16-9 at 29). The provider noted Bullock had stated that, since receiving Valium, he had “‘been on cloud 9 since, sleeping well ... I have cleaned the house, and I am coping better.'” (Id.). He also reported he had “not had any triggers of PTSD.” (Id.).
Bullock was seen at CPR on June 15, 2016. (ECF No. 16-9 at 18). He presented “as anxious and sweaty,” and reported often feeling “‘scattered and confused.'” (Id.). Bullock reported “racing thoughts, poor sleep,” and being forgetful. (Id.). He also reported worry about seizures and worry about the reduction of his benzodiazepine medication (“‘feels like everyone is abandoning me with those.'”). (Id.). He “shared that he saw staff at methadone clinic ‘The client is pushing me to get someone else to prescribe benzos.' ‘They told me to settle down.' ‘I took a Xanax today.'” (Id.). Bullock told the provider his primary care physician had agreed to continue prescribing benzodiazepines, but also stated: “‘I don't know fear from reality.'” (Id.). On observation Bullock was fully oriented, but feeling anxious, confused, and disorganized. (ECF No. 16-9 at 19).
Bullock filed his application for Title II Social Security disability insurance benefits on June 23, 2016. (ECF No. 16-3 at 20, ECF No. 16-6 at 12-16).
Bullock was seen at CPR on June 23, 2016. He reported having a “rough month with the seizures” and establishing care with a neurologist. (ECF No. 16-9 at 10). Bullock reported an EEG/EMG ordered by the neurologist “indicated minor nerve deficits on both legs,” and that the neurologist was “not comfortable prescribing the valium w/methadone ..” (Id.). The treatment notes state:
Client reports he has looked into detox programs but his biggest hesitation is that his anxiety will be unmanaged after he is off the benzos because per the client “they work for me”. Client reports that the methadone clinic is wanting this writer or his neurologist to prescribe this benzo. “If I were back the baseline of what worked then my anxiety would be better”.
Client reports his recent medical issues are exacerbating his anxiety severely. Client reports “right now I'm ok”. He reports he has times of the day he feels very anxious and sweaty “it's hard to control right now”. ... Client rates average anxiety at ¶ 6/10 (10=worst anxiety). Client denies nightmares. Denies flashbacks. He reports he currently is suspended from driving [] due to recent seizure like activity until the neurologist clears him.(ECF No. 16-9 at 10-11). In the “assessment,” the treatment provider noted:
Had lengthy conversation with client about high risks of taking valium in combination with methadone, including accidental overdose and death. Client was informed that valium would not be prescribed by writer on an ongoing basis unless client was agreeable to taper off and client reports he has never felt better and wishes to stay on current regimen. Client was informed he is entitled to a second opinion with a different psych provider if he wishes and should schedule an appt with a neurologist ASAP due to recent seizure activity. Re-educated client on option of detoxing off benzodiazepines due to high risks, client is not open at this point .(ECF No. 16-9 at 15). The treatment provider noted diagnoses of PTSD and anxiolytic dependency, and noted the “medical issues” as chronic back pain and hypertension. (Id.).
Anxiolytics are a a class of medications used to prevent or treat anxiety symptoms or disorders, such as Xanax and Valium.
Bullock went to the emergency room on July 16, 2016, complaining of cough, shortness of breath, and dull aching pressure in his chest. (ECF No. 16-14 at 76). The physician noted a normal range of motion with regard to Bullock's musculoskeletal condition. (ECF No. 16-14 at 77). The doctor noted “unchanged EKG from 2015.” (Id.).
On July 20, 2016, Bullock presented at the emergency room complaining of chest pain and shortness of breath, following several days of a chest cold and nausea and vomiting. (ECF No. 16-8 at 47). A computed tomography angiography of the chest revealed acute peripheral pulmonary embolus in the right lower lobe branches. (ECF No. 16-8 at 49). An echocardiogram showed a normal ejection fraction. (ECF No. 16-8 at 55). Bullock was diagnosed with right-sided pulmonary embolism, hypertension, methadone dependence, anxiety, and an inguinal hernia, and discharged on July 27, 2016. (Id.).
A “Medication Progress Note” from CPR dated August 17, 2016, states:
Client thought he was having a panic attack. He went to John C Lincoln and they did a CT scan and dx him with a pulmonary embolism He is getting a full body MRI in the next week or two. Client reports his nerves in his arms/legs “are shot”. He is being referred to an orthopedic surgeon by his neurologist. Client has been having more nightmares, namely about past traumas witnessed. His sleep has been poor. Client has been sleeping 4-5 hours per night. Client is having nightmares every night. Client has been sweating throughout the night. Client applied for disability. He is having a lot of focus issues.(ECF No. 16-9 at 2-3). Bullock was observed by the attending psychiatric NP to be sad during the visit, with an abnormal gait. (ECF No. 16-9 at 6).
Bullock was seen at Honor Health on October 27, 2016. (ECF No. 16-13 at 81). Bullock was seen for a reduction in his prescription for Valium “and conversion to a non benzo medication,” as his “methadone clinic [was] requesting this change although the pt has decreased his methadone dosage.” (ECF No. 16-13 at 82). Upon examination the NP noted back pain, tenderness, and decreased range of motion. (ECF No. 16-13 at 82-83).
When seen at Honor Health on January 11, 2017, the NP noted Bullock was “scheduled to go into the Maverick house [a residential substance abuse treatment center] ¶ 1/25/17 for mental health support.” (ECF No. 16-13 at 88).
Bullock was seen at Honor Health on January 26, 2017, reporting that taking Ambien (zolpidem, a sedative-hypnotic) was resulting in sleep-walking, and that going off the Ambien resulted in insomnia. (ECF No. 16-13 at 91). Bullock was also taking Seroquel (quetiapine, a second-generation antipsychotic used to treat bipolar disorder and depression), and methadone for pain control. (Id.). Bullock was taken off Ambien and started on Lunesta (eszopiclone, also a sedative- hypnotic). (ECF No. 16-13 at 93).
When seen at Honor Health on February 24, 2017, Bullock reported taking an increased dosage of Lunesta was “working well.” (ECF No. 16-13 at 95). He was “residing at Maverick House ....” (Id.). At that time Bullock's methadone had been “reduced,” he was “feel[ing] well,” and he felt the “methadone is controlling his pain better than opioids.” (ECF No. 16-13 at 99). “His mood [was] been stable and he no longer feels depressed.” (Id.).
Bullock filed an application for Supplemental Security Income (“SSI”) benefits on April 17, 2017. (ECF No. 16-3 at 20; ECF No. 16-6 at 2-10).
Bullock was seen by his methadone treatment counselor on May 5, 2017. (ECF No. 16-16 at 181). He reported he was living by himself. (Id.) He was “not working and [had] no plans to go back.” (Id.). He reported his only current prescribed medication was methadone. (Id.). Bullock denied having “difficulties in physically completing [activities of daily living].” (ECF No. 16-16 at 182).
State agency medical consultant K. Mallik, M.D., opined in June 2017 that Bullock's medical records indicated “lumbar strain” and osteoarthritis; the doctor concluded a finding of osteoarthritis in Bullock's knee and ankle were “not supported” by the record. (ECF No. 16-4 at 17). Mallik opined Bullock's hypertension was “well controlled without systemic manifestations to impede functional ability,” and that Bullock's “right shoulder strain” did not “impede functional ability.” (ECF No. 16-4 at 17). Mallik opined the primary reported physical impairment of back disorders was non-severe. (Id.).
Bullock's claims for disability benefits were denied initially on June 26, 2017, because his impairments were found to be non-severe; the denials mentioned that the “available evidence [was] both dated and limited.” (ECF No. 16-4 at 48, 51). Bullock requested reconsideration on August 2, 2017. (ECF No. 16-5 at 14). On reconsideration he asserted that, he was “experiencing an increase in pain and shortness of breath. I cannot walk due to fatigue and pain.” (ECF No. 16-6 at 43).
Bullock was seen at Honor Health on August 23, 2017. (ECF No. 16-13 at 101). The NP's notes indicate Bullock “had increased back spasms while on the Methadone and [he] would like to see if a TENS unit can be ordered.” (Id.). At that time Bullock had ceased taking Seroquel. (Id.). Upon examination Bullock was found to have back pain and a “gait problem.” (ECF No. 16-13 at 102). He also displayed decreased range of motion, tenderness, and pain and spasm in his lumbar back. (Id.). The NP added a diagnosis of “midline low back pain with sciatica, sciatica laterality unspecified, unspecified chronicity,” and a TENS unit was ordered. (ECF No. 16-13 at 103).
Bullock went to the emergency room on September 5, 2017, complaining of chest pain radiating to his left shoulder. (ECF No. 16-14 at 110). On admission he reported a history of hypertension and pulmonary embolism, chronic pain, and “bipolar disease.” (ECF No. 16-14 at 109). A CTA scan was negative, and a stress test showed “possible reversible ischemia.” (ECF No. 16-14 at 110). A left heart catheterization “was essentially normal.” (Id.). Bullock also complained of right foot pain and numbness, and the physician opined he “likely has right foot neuropathy.” (Id.). Bullock was “started on Neurontin [gabapentin] as well for pain.” (ECF No. 16-14 at 110).
Bullock was seen at Honor Health on October 27, 2017, for a follow-up from the visit to the emergency room. (ECF No. 16-13 at 104). Bullock complained of chest pain, and he reported having angina symptoms when having anxiety attacks. (Id.).
In November of 2017, State agency medical consultant T. Ostrowski, M.D., reviewed Bullock's medical records and opined Bullock could lift 25 pounds occasionally, 10 pounds frequently, and was able to stand, walk, or sit for about six hours in an 8-hour workday. (ECF No. 16-4 at 53). Ostrowski concluded Bullock could frequently climb ramps or stairs, frequently kneel, and occasionally stoop and crawl. (Id.). Ostrowski opined that Bullock's assertions that he could only walk 50 yards was not supported by the medical record, noting his cardio echogram was normal and a stress test was negative for ischemia. (ECF No. 26-4 at 54). The doctor also noted a cardiac examination in August of 2017 “was normal with normal GAIT,” and that only “occasional exams show decreased lumbar motion ...” (Id.).
Bullock appeared for a psychological consultative examination on December 13, 2017, with Dr. Drake. (ECF No. 16-10 at 96). The doctor's notes state:
Mr. Bullock reported he received Social Security benefits from 2005 to 2008. He reported he attempted to return to work. He reported he had worked as a paramedic fireman for twenty years. He reported he had an accident at work and he had received Worker's Compensation. He also reported he also had received disability and the pension.
Mr. Bullock reported he “loved the job.” He reported he had exposure to multiple traumatic events in the course of his employment.
Mr. Bullock reported he had been working for Southwest Ambulance and he was terminated from that job after he had a disagreement with a Glendale Fire Department captain who wanted him to change a report. He related he would not. He reported the Union “didn't do anything about it.”(ECF No. 16-10 at 96-97). With regard to “Predisposition for alcohol and substance abuse,” the physician reported: “Substance abuse history included use of alcohol, cocaine, and marijuana. He reported he also abused pain medications for three to four years.” (ECF No. 16-10 at 97). With regard to his activities of daily living, Bullock reported “the time he gets up varies. During the day he watches TV and reads. He reported he will go on the Internet but ‘not much.' He will cook, clean, and does laundry. He reported he spends most of his time by himself.” (ECF No. 16-10 at 98). Bullock scored 27 out of 30 on the Mini-Mental State Examination (“MMSE”). (Id.). The examiner noted, with regard to their “opinion:” “He reported he had received Social Security benefits and he then returned to work. He reported he had been working and he was terminated. He reported he had psychiatric symptoms while he did work and he did not indicate those symptoms impacted his work at the time.” (Id.).
Bullock's claims for disability benefits were denied on reconsideration on January 3, 2018. The Disability Determination Explanation states a consultative examination was required because “[t]he evidence as a whole, both medical and nonmedical, is not sufficient to support a decision on the claim.” (ECF No. 16-4 at 49). The document indicates a consultative examination was requested of Bullock's medical “source(s),” who was or were “unwilling to perform the CE(s) (such as when the source does not accept the state approved vendor fee).” (Id.).
On February 9, 2018, Bullock requested a hearing before an ALJ. (ECF No. 16-5 at 24-25).
Bullock was seen at Honor Health on February 12, 2018. (ECF No. 16-14 at 7). Bullock's prescriptions were listed as buspirone (BuSpar, for anxiety), clonidine, Lunesta, fenofibrate (for high cholesterol), hydrochlorothiazide, lisinopril, and methadone. (Id.). Bullock felt “his neuropathy [was] getting worse and [he] would like to be considered for a pain stimulator. He continues to take Methadone which is helping but not completely controlling] his pain. He would like to titrate off the methadone after the pain stimulator is implanted.” (Id.).
Bullock was seen at Valley Anesthesiology & Pain Consultants on March 9, 2018. (ECF No. 16-12 at 27). Bullock reported a “long history of chronic low back pain” and a lumbar spine fusion in 1998. (Id.). He did not have “significant neck complaints” at that time. (Id.). Bullock reported he had received epidural steroid injections, medial branch blocks, radio frequency ablation, and sacroiliac joint injections, and that he was interested in a spinal cord stimulator. (Id.). He rated his current and average daily pain as 6/10, and unchanged from his last visit. (Id.). He described the pain as sharp, dull, and aching, and stated sitting, standing, and twisting worsened the pain. (Id.). He reported physical therapy, chiropractic, a TENS unit, acupuncture, and epidural steroid injections were not helpful, although trigger point injections, facet and medial branch blocks, and radio frequency ablation were “temporarily helpful.” (Id.). The doctor noted surgical history as lumbar spine fusion L4-L5, cervical spine fusion at ¶ 4-C5, and a laminectomy at ¶ 4-L5. (Id.). Examination revealed increased pain with movement; limited range of motion with flexion and extension, and rotation and bending of the lumbar spine, tenderness with palpation of the bilateral lumbar paraspinous muscles, and positive bilateral straight leg raises. (ECF No. 16-12 at 29). A Patrick's test for hip function was positive, revealing tenderness over the bilateral sacroiliac joints. (Id.). Strength tests of the iliopsoas, quadriceps, hamstrings, tibialis, and gastroc-soleus were all 5/5 or 4/5. (ECF No. 16-12 at 29). The doctor ordered imaging and an MRI. (ECF No. 16-12 at 29-30).
Bullock was seen at Valley Anesthesiology & Pain Consultants on April 9, 2018. (ECF No. 16-12 at 22). His chief complaints were low back pain and right-sided radicular pain. (Id.). He rated his current and average daily pain as 6/10, and unchanged from his last visit. (Id.). He described the pain as sharp, dull, and aching, and stated that sitting, standing, and twisting worsened the pain. (Id.). Bullock reported “30-50% relief” with the current medication at the current dosing, i.e., 170 mg of methadone per day. (Id.). Bullock reported a “long history of chronic low back pain.” (Id.). He did not have “significant neck complaints” at that time. (Id.). Bullock reported that at times the back pain was severe and unbearable, and he experienced numbness in both feet. (Id.). He reported the pain was better with heat, worse at morning and night and with activity. (Id.). He experienced weakness in his right lower extremity and numbness in both lower extremities. (Id.). He reported physical therapy, chiropractic, TENS unit, acupuncture, and epidural steroid injections were not helpful, although trigger point injections, facet and medial branch blocks, and radio frequency ablation were “temporarily helpful.” (Id.).
An MRI conducted March 28, 2018, showed lumbar region radiculopathy, post laminectomy at ¶ 4-5, and interbody fusion with spacer material. (Id.). It also showed “solid fatty marrow bridging across the L4 and L5 intervertebral disc space, and “[b]one graft material is also present within the posterior elements. Susceptibility artifact from metallic hardware extends into the facet joints at ¶ 5 bilaterally. The patient is also status post midline laminotomy at ¶ 3-4.” (ECF No. 16-12 at 22-23). The doctor's notes on the MRI also state “[t]he remainder of the vertebral bodies are normal in height. There is straightening of the lumbar lordosis. Alignment is otherwise unremarkable. Multilevel disc height loss, disc desiccation, reactive endplate changes and prevertebral spondylosis is present, worst at ¶ 2-3 and L3-4 as well as at ¶ 5-S1.” (ECF No. 16-12 at 23). At the L1-L2, a 1 mm disc bulge and mild bilateral facet effusions without spinal canal or neural foraminal compromise, at the L2-L3, trace retrolisthesis and a circumferential disc osteophyte complex with a mildly caudally migrating central disc extrusion indents the ventral thecal sad. Mild to moderate faced degenerative changes, mild to moderate spinal canal stenosis, and moderate on the left neural foraminal narrowing. (Id.). The doctor's impressions were:
Postoperative changes at ¶ 4-5 and, to a lesser extent, at ¶ 3-4 as described.
L2-3, mild to moderate spinal canal stenosis and moderate left neural foraminal narrowing.
L3-4, minimal bilateral neural foraminal narrowing.
L4-5, moderate right and mild to moderate left neural foraminal narrowing.
L5-S1, moderate left and mild to moderate right neural foraminal narrowing.(Id.).
Bullock was seen at Valley Anesthesiology & Pain Consultants on April 9, 2018, for a reevaluation. (ECF No. 16-12 at 22). The doctor listed Bullock's prescription medications as methadone, clonidine, lisinopril, hydrochlorothiazide, and eszopiclone. (ECF No. 16-12 at 24). Upon examination the doctor noted increased pain with movement of the lumbar spine, and diagnosed radicular pain of lumbosacral region, lumbar post-laminectomy syndrome, low back pain at multiple sites, and muscle spasm. (ECF No. 16-12 at 24-25). As a “plan,” the doctor proposed the use of a Medrol Dosepak, proceeding with caudal epidural steroid injections, physical therapy for both pain management and “overall musculoskeletal health,” and “weaning” Bullock “off methadone.” (ECF No. 16-12 at 25). Noting Bullock's above-normal BMI, Bullock was encouraged to exercise. (ECF No. 16-12 at 26). The doctor also noted “No falls in the past year.” (Id.).
Bullock was seen at Honor Health on April 5, 2018, complaining of a cough and congestion. (ECF No. 16-14 at 10). The notes indicate he was “interested in starting mental health treatment and counseling and treatment now that the services” were available from this provider. (ECF No. 16-14 at 11).
Bullock was seen at Honor Health on May 4, 2018. (ECF No. 16-14 at 14). The NP noted Bullock had a “fall that occurred three days ago in his home. He was trying to change ceiling lights and fell from the ladder hitting his L shoulder. ... He feels his [range of motion] is very compromised and he is holding the L arm against his chest.” (ECF No. 16-14 at 18). Upon examination the NP did not note any lumbar pain or decreased range of motion. Bullock generally felt “well,” and was “starting to receive steroid injections through pain mgt. He feels the steroid injections are helping and he is hoping he can decrease his methadone use.” (ECF No. 16-14 at 16). The diagnoses at that time were depression, anxiety, essential hypertension, insomnia, neck pain, pulmonary embolus, methadone dependence, and an inguinal hernia without obstruction. (ECF No. 16-14 at 15). The NP prescribed Toradol (a NSAID) for the shoulder injury. (ECF No. 16-14 at 20).
Bullock was seen by Dr. Goyle at Valley Anesthesiology & Pain Consultants on May 21, 2018, for a reevaluation of low back pain and right-sided radicular pain. (ECF No. 16-12 at 15). He reported experiencing greater than fifty percent pain relief for two weeks after the prior epidural steroid injection. (Id.). Dr. Goyle reviewed an MRI of the lumbar spine from March 28, 2018, which revealed postoperative changes at ¶ 4-L5 and at ¶ 3-L4; mild to moderate spinal canal stenosis and moderate left neural foraminal narrowing at ¶ 2-L3; minimal bilateral neural foraminal narrowing at ¶ 3-L4; moderate right and mild to moderate left neural foraminal narrowing at ¶ 4-L5; and moderate left and mild to moderate right neural foraminal narrowing at ¶ 5-S1. (ECF No. 16-12 at 16). Upon examination Dr. Goyle noted normal gait, intact heel to toe walk, increased pain with movement of the lumbar spine, and “slight weakness” with right iliopsoas flexion and right EHl flexion “4/5 compared to LEFT side 5/5.” (ECF No. 16-12 at 18). After reviewing the recent lumbar spine MRI, Dr. Goyle decided to proceed with repeated caudal epidural steroid injections, because Bullock's most significant dissipation of pain was in the L4, L5, and S1 distribution and the doctor noted the “[m]ost recent caudal ESI performed April 26, 2018 provided 2 weeks of 50% relief before the pain returned to baseline.” (Id.). The doctor also recommended physical therapy “for additional modalities, as part of a comprehensive approach to the patient's management and for overall musculoskeletal health.” (Id.).
On June 14, 2018, Bullock returned to Dr. Goyle for an epidural steroid injection. (ECF No. 16-12 at 13-14).
Bullock was seen at Honor Health on October 9, 2018, still complaining of shoulder pain from the fall several months prior. (ECF No. 16-14 at 22). The nurse practitioner's notes state:
He had an x-ray ordered back in July [] but did not have it done because he felt the shoulder was improving. Shoulder pain is worsened in the past two weeks. Patient is not in any new exercises he is not sure shoulder pain has gotten worse but he did schedule an appointment with pain management to have a shoulder injection done. Patient will have shoulder x-ray done today. If negative will order physical therapy.(Id.). Upon examination the NP noted decreased range of motion, tenderness, pain, spasm, and decreased strength in the left shoulder. (ECF No. 16-14 at 23).
On October 23, 2018, Bullock was seen by Physician's Assistant (“PA”) Piermarini at Valley Anesthesiology & Pain Consultants. (ECF No. 16-12 at 9). Bullock reported his pain as 5/10, and worse since the prior visit; Bullock reported his medication provided ten to thirty percent pain relief. (Id.). Upon examination, Bullock's lower back had increased pain with movement of the lumbar spine, and slight weakness with right iliopsoas flexion and right extensor hallucis longus flexion. (ECF No. 16-12 at 10). The PA noted normal gait. (Id.). Bullock's left shoulder had decreased range of motion secondary to pain and tenderness to palpation was present over biceps tendon. (Id.). There was also sensory diminished sensation on the left L4, L5, and S1 distribution distally. (Id.). Bullock was assessed with radicular pain of lumbosacral region, lumbar post-laminectomy syndrome, low back pain at multiple sites, muscle spasm, and myalgia. (Id.). PA Piermarini noted Bullock was starting physical therapy for his shoulder. (Id.).
There are no physical therapy records in the Record on Appeal.
Bullock was seen at Honor Health on October 24, 2018. (ECF No. 16-14 at 25). Bullock's medication for his insomnia was changed. (ECF No. 16-14 at 26).
On November 9, 2018, Bullock returned to Dr. Goyle for an epidural steroid injection. (ECF No. 16-12 at 7).
Bullock was seen at Honor Health on January 14, 2019, to follow-up from an emergency room visit earlier that month. (ECF No. 16-14 at 28, 32). “He was seen there for chest pain and was evaluated by cardiology and told that he had no cardiac event.” (ECF No. 16-14 at 32). The NP also noted Bullock was “seeing pain management for chronic pain of the cervical and lumbar area. He is taking non[n]arcotics through pain management he is on methadone for pain control his methadone dose is unchanged from last visit.” (Id.). Upon examination the NP noted Bullock was “positive” for back and neck pain, and displayed a decreased range of motion, tenderness, pain, and spasm in his cervical spine. (ECF No. 16-14 at 33). The NP noted Bullock drank 1.5 liters of soda daily, and discussed issues of “kidney function.” (ECF No. 16-14 at 29). With regard to his hypertension, the NP noted Bullock was taking his medication, but “not really watching diet and is not exercising regularly. There is occasional chest pain (sees cardiology and has had for years) . . . Patient does NOT monitor blood pressure at home. Denies any excessive daytime sleepiness.” (Id.). The assessment included a diagnosis of chronic bilateral low back pain without sciatica, and chronic cervical pain. (ECF No. 1614 at 33).
On February 25, 2019, Bullock was seen by PA Piermarini at Valley Anesthesiology & Pain Consultants, regarding low back pain. (ECF No. 16-12 at 3). Bullock rated his pain as 8/10 and worsening since prior visit. (Id.). Bullock described his pain as sharp, shooting and cramping. (Id.). His pain was noted to be worse with standing, twisting, walking, and with exercise. (Id.). Bullock reported his medication provided ten to thirty percent pain relief. (Id.). PA Piermarini noted Bullock's surgical history included lumbar spine fusion at ¶ 4-L5, cervical spine fusion at ¶ 4-C5, laminectomy at ¶ 4-L5, bilateral hernia repair, and sinus surgery. (Id.). Upon examination, Bullock had increased pain with movement of the lumbar spine, slight weakness with right iliopsoas flexion and right extensor hallucis longus flexion. (ECF No. 16-12 at 4). Bullock's left shoulder had decreased range of motion secondary to pain. (Id.). There was also tenderness to palpation over biceps tendon. (Id.). Sensory diminished sensation was present at the left L4, L5, and S1 distribution distally. (Id.). Bullock denied muscle weakness and numbness, and the PA noted normal gait. (Id.). Bullock was assessed with radicular pain of lumbosacral region, lumbar post laminectomy syndrome, low back pain at multiple sites, muscle spasm, and myalgia. (Id.). PA Piermarini noted Bullock was ready to schedule another epidural steroid injection, and that the injections provided “relief,” but he had not been able to find a surgeon that accepted his insurance. (Id.). Bullock reported muscle spasms, which were worse at night, for which he was prescribed tizanidine. (ECF No. 16-12 at 4-5).
Bullock was seen at Abrazo Scottsdale on March 20, 2019, complaining of chest pain after walking. (ECF No. 16-14 at 142). He had “decided to start getting back in shape,” but after walking about a mile “he noticed some left-sided chest pain.” (Id.). Upon examination the doctor noted regular heart rate and rhythm, and no murmur. (ECF No. 16-14 at 144). An EKG showed “no ST elevation.” (ECF No. 16-14 at 145). The doctor opined there was no radiographic evidence of any acute cardiopulmonary disease, noting a “clean cardiac catheterization.” (ECF No. 16-14 at 146).
Bullock met with his methadone treatment counselor on April 2, 2019. He reported living alone and he communicated his goals as better health, to spend more time with his children, and to reduce his back pain. (ECF No. 16-16 at 169, 173). He reported his medications as methadone, eszopiclone, and tizanidine. (ECF No. 16-16 at 173). Bullock denied “having any difficulties in physical completing [activities of daily living].” (ECF No. 16-16 at 174).
On October 8, 2019, Bullock underwent an x-ray of the lumbosacral spine. (ECF No. 16-19 at 2). The imaging revealed: mild thoracolumbar dextrocurvature; severe spondylosis with multilevel sever disc narrowing at ¶ 2-S1; and grade 1 anterolisthesis of 7 mm at ¶ 4-L5 level. (Id.). Lumbar pedicles were normal, lateral alignment was normal, and lateral lumbar alignment in the neutral and extension positions was normal. (Id.). Bullock also underwent an MRI of the lumbar spine. (ECF No. 16-19 at 3). The imaging revealed no lateral curvature of the lumbar spine, mild to moderate Modic type II chronic discogenic degenerative endplate changes with local fatty marrow replacement were seen at the L2-L3, L3-L4 and L5-S1 levels; Modic type I changes with high signal marrow edema at the L2-L3 level; fatty marrow trabecular bridging in the L4-L5 disc space ankylosis was unchanged; persistent moderate disc desiccation and mild disc bulge with mild facet arthropathy at ¶ 2-L3; moderate central thecal sac stenosis without cauda equina compression at ¶ 2-L3; mild neural foramen stenosis bilaterally at ¶ 2-L3; persistent moderate disc desiccation with mild facet arthropathy and mild lateral recess narrowing at ¶ 3-L4; mild neural foramen stenosis at ¶ 3-L4 level bilaterally; no changes in chronic ankylosis at the L4-L5 level; mild neural forma stenosis at ¶ 4-L5 level bilaterally; no change in severe disc desiccation with mild fact arthropathy producing mild right lateral recess narrowing and no central thecal sac stenosis at ¶ 5-S1; and mild neural foramen stenosis at ¶ 5-S1 bilaterally. (Id.).
At the hearing before the ALJ, conducted October 16, 2019, Bullock's counsel argued he was “unable to work on a full-time basis, mostly due to pain. And he also does gri[d] at sedentary.” (ECF No. 16-3 at 42). Bullock testified that he was only able to drive “limited distances,” because the pain in his back precluded him from sitting for “any length of time.” (ECF No. 16-3 at 44). Bullock did drive to the hearing before the ALJ. (Id.). Bullock testified that he stopped working in 2014 due to difficulties with his back. (ECF No. 16-3 at 45). He stated his “pain just got worse and it resulted in poor sleep and inability to - to concentrate and function.” (Id.). Bullock told the ALJ he could not work because the pain was “bad enough now that I - I can barely make it into the store or something like that. I can't walk very far. Only 15 or 20 minutes at the most and I stand. And I have to rotate between standing and lying down throughout the day.” (ECF No. 163 at 46-47). He testified that, at that time, he was taking dolophine (methadone), clonidine, fenofibrate, hydrochlorothiazide, albuterol, lisinopril, tizanidine, and Lunesta. (ECF No. 16-3 at 47). Bullock testified that “[s]ometimes” his medications made him “a little bit drowsy,” and that he got “nauseous quite a bit from some of the medicines.” (Id.). He also testified that he “wore a back brace off and on since 2015 with only limited relief,” allowing that the brace was not prescribed by a physician. (Id.). He also stated there were “times now” when he would “rely on a cane when [his] gait gets unsteady,” and that he used a motorized cart at the store. (ECF No. 16-3 at 48). He testified the cane was prescribed by a physician, and that he had been using it “on occasion” for two years. (Id.). He reported he had had two surgeries on his lumbar spine and one on his cervical spine, and that he had been referred to an “orthopedic surgeon for the new MRI stuff . . .” (Id.). Bullock testified he was not then receiving any mental health treatment, and that he had not had mental health treatment for the prior two years. (Id.).
Bullock testified on a typical day he woke very early, because his back hurt worse “[t]he longer I lay in bed.” (ECF No. 16-3 at 49). He testified he spent “most of the day” in his recliner or laying down, watching television. (ECF No. 16-3 at 49-50). He stated he had difficulty tying his shoes, and that he was afraid of falling while showering although he did not use an assistive device in the shower because the shower was “really small.” (ECF No. 16-3 at 50). With regard to household chores, he testified he “took care” of dishes, but was limited “as far as anything else,” such as vacuuming. (Id.). Bullock stated he did his own laundry and shopped with a motorized scooter. (ECF No. 16-3 at 50-51). He stated that without the scooter his pain caused him to get nauseous and dizzy. (ECF No. 16-3 at 51). Bullock testified he spent most of the day in a recliner “or the EZ chair or laying down,” but took “respites.” (Id.). He testified that if he stayed “upright too long then my back, the pain goes down my hip to where I can't sit much longer after that.” (Id.). He stated he watched television “most of the time,” and that he read novels. (Id.).
In response to his counsel's questions, Bullock testified he moved from a reclining position to sitting up throughout the day, spending about fifty percent of the day lying down. (ECF No. 16-3 at 53). He said his back pain felt like “a burning that radiates to [his] head,” and that the pain was constant. (Id.). He stated his neck pain wasn't “that bad.” (Id.). He also stated that, in addition to lying down, “[s]ome of the meds” helped his back pain “a little bit.” (Id.).
In response to the ALJ's hypothetical, the vocational expert testified that an individual who could perform a “light” exertional level of work, who could never climb ladders, ropes, or scaffolds, and could occasionally balance, stoop, kneel, crouch, and crawl, could not perform Bullock's past relevant work of an emergency medical technician. (ECF No. 16-3 at 55). The VE testified that an individual with the limitations posited by the ALJ (i.e., an individual with the residual functional capacity assessed by the ALJ with regard to Bullock's abilities) could perform light, unskilled work such as a counter attendant, an unskilled housekeeping position, or a cashier. (ECF No. 16-3 at 56).
In the written decision denying benefits the ALJ determined Bullock had not engaged in substantial gainful activity since the alleged onset date in April 2015. (ECF No. 16-3 at 23). The ALJ concluded Bullock had the severe impairments of lumbar postlaminectomy syndrome, obesity, anxiety, and major depressive disorder with post-traumatic stress disorder (PTSD) features. (Id.). At the third step of the evaluation, the ALJ concluded none of Bullock's impairments, individually or collectively, met or equaled a listed impairment. (Id.). The ALJ gave numerous reasons for finding that none of Bullock's physical or mental impairments, singly or in combination, met or equaled a listed impairment. (ECF No. 16-3 at 24-25).
Inter alia, the ALJ explained: “The records reflect a history of opioid dependence. He is now given methadone to treat chronic pain (B5F/13, B11F/54). There is no indication that the claimant's methadone use affects his ability to work. To the contrary, it appears necessary to control his pain.” (ECF No. 16-3 at 23). The ALJ also determined:
The claimant's psychotherapy records reflect a diagnosis of anxiolytic dependency (B7F). However, this diagnosis was provided by Lindsay Stream, PMHNP-BC, who is not an acceptable medical source. There must be objective evidence from an acceptable medical source in order to establish the existence of a medically determinable impairment (SSR 06-3p). Therefore, the undersigned finds that this diagnosis does not qualify as a medically determinable impairment.(ECF No. 16-3 at 23).
Inter alia, the ALJ stated:
In reaching this determination, the undersigned considered, but ultimately rejected, the opinions of the State agency non-examining psychological consultants and the psychological consultative examiner. These psychologists found insufficient evidence of a severe mental impairments (Exhibits B3A, B4A, B7A, B8A). These opinions are contrary to the claimant's mental health records available at the hearing level, which as discussed in greater detail below establish a lengthy history of anxiety and depression that would cause at least a minimal effect on the claimant's ability to perform basic work activities. Accordingly, the undersigned finds that these opinions are entitled to only limited weight.(ECF No. 16-3 at 25).
At the fourth step of the sequential evaluation, the ALJ determined:
... the overall record supports finding that the claimant reasonably experiences limitations in his ability lift and carry heavy weight and perform activities that require movement of the spine and lower extremities. Accordingly, a light exertion level has been assigned, meaning the claimant can lift and carry no more than 20 pounds occasionally and ten pounds frequently. Additionally, the claimant can perform postural activities no more than occasionally. Due to complaints of numbness in the lower extremities, the claimant can never climb ladders, ropes, or scaffolds and must avoid hazards.(ECF No. 16-3 at 28).
The ALJ determined Bullock had the
..... residual functional capacity to perform light work as defined in 20 CFR 404.1567(b) and 416.967(b). He can occasionally climb ramps and stairs,
but can never climb ladders, ropes, or scaffolds. The claimant can occasionally balance, stoop, kneel, crouch, and crawl. He must avoid hazards, including machinery and unprotected heights. He is able to perform simple, routine tasks and make simple, work-related decisions.(ECF No. 16-3 at 26).
These regulations provide:
(b) Light work. Light work involves lifting no more than 20 pounds at a time with frequent lifting or carrying of objects weighing up to 10 pounds. Even though the weight lifted may be very little, a job is in this category when it requires a good deal of walking or standing, or when it involves sitting most of the time with some pushing and pulling of arm or leg controls. To be considered capable of performing a full or wide range of light work, you must have the ability to do substantially all of these activities. If someone can do light work, we determine that he or she can also do sedentary work, unless there are additional limiting factors such as loss of fine dexterity or inability to sit for long periods of time.20 C.F.R. § 404.1567.
(b) Light work. Light work involves lifting no more than 20 pounds at a time with frequent lifting or carrying of objects weighing up to 10 pounds. Even though the weight lifted may be very little, a job is in this category when it requires a good deal of walking or standing, or when it involves sitting most of the time with some pushing and pulling of arm or leg controls. To be considered capable of performing a full or wide range of light work, you must have the ability to do substantially all of these activities. If someone can do light work, we determine that he or she can also do sedentary work, unless there are additional limiting factors such as loss of fine dexterity or inability to sit for long periods of time.20 C.F.R. § 416.967.
The ALJ discussed Bullock's hearing testimony, concluding Bullock's “medically determinable impairments could reasonably be expected to cause the alleged symptoms,” but that his “statements concerning the intensity, persistence and limiting effects of these symptoms are not entirely consistent with the medical evidence and other evidence in the record for the reasons explained in this decision.” (ECF No. 16-3 at 26-27). The ALJ discussed Bullock's medical records, including his lumbar spine fusion in 1998, the 2018 MRI results, the MRI and x-ray results in October of 2019, and the degree to which the epidural injections and medication provided pain relief. (ECF No. 16-3 at 27).
The ALJ also stated:
The claimant undoubtedly has significant degeneration of his lumbar spine that would reasonably affect his ability to perform work activity. However, his statements regarding the intensity, persistence, and limiting effects of his symptoms are inconsistent with the greater record. The claimant testified that he spends most of his time sitting in his recliner or lying down and watching television. However, the medical records reflect that the claimant fell from a ladder while trying to change ceiling lights in March 2015 (B23F/37), went to movie with his son in March 2016 (B7F/43), reported going out to restaurants more frequently in April 2016 (B7F/40), and was working on his brother's truck in May 2016 (B11F/38). The ability to climb ladders and work on a truck stands in stark contrast to the picture the claimant paints of a generally immobile lifestyle spent in the recliner or lying down. Notably, during a physical examination in January 2019, the claimant presents with relatively mild abnormalities, consisting of decreased range of motions, tenderness, and muscle spasm (Exhibit B23F/51). In February and April 2019, the claimant was noted to have a
grossly normal neurologic examination with a normal gait (Exhibit B17F/3, 32) - indicating an ability to walk unhindered by radicular or neurologic deficits or pain, acute distress, or other more concerning symptomology.
Although the records do reflect ongoing complaints of back pain, the undersigned finds that the claimant's activities are inconsistent with the claimant's statements of disabling intensity and persistence of symptoms.
As indicated above, the undersigned finds the claimant's obesity is a severe impairment. In considering the claimant's weight over time, the claimant's body mass index shows a consistent pattern of obesity as evidenced by the claimant's body mass index (BMI) of 30 to 35. The claimant's obesity, including the effect on exertional functions, nonexertional functions, stress on weight-bearing joints, limitations of range of motion, ability to manipulate objects, ability to tolerate environmental conditions, and physical and mental ability to sustain function over time, has been considered alone and in combination with the other impairments (see SSR 19-2p).(ECF No. 16-3 at 27-28) (emphasis added).
The ALJ then discussed the opinion of the state agency physician (Mallik) in June of 2017, and gave this opinion little weight because it was “not consistent with the medical evidence of record, particularly the lumbar imaging.” (ECF No. 16-3 at 28). The ALJ gave partial weight to the November 2017 opinion of the state agency physician (Ostrowski), reasoning that this opinion overestimated Bullock's abilities with regard to lifting, carrying, and postural activities, in light of Bullock's spinal impairment, but finding the opinion regarding occasional stooping and crawling was supported by the record, and giving it “some weight.” (ECF No. 16-3 at 28).
The ALJ concluded:
In sum, the above residual functional capacity assessment is supported by the longitudinal record. Medical examinations do not demonstrate an inability to carry out basic work activities. The record reflects that the claimant performs activities of daily living are inconsistent with the activities of a person who is completely disabled. The record as a whole is consistent with the residual functional capacity above.(Id.).
In support of the determination that Bullock's residual functional capacity would allow him to perform jobs existing in significant numbers in the national economy, the ALJ stated:
If the claimant had the residual functional capacity to perform the full range of light work, a finding of “not disabled” would be directed by Medical-Vocational Rule 202.21 and Rule 202.14. However, the claimant's ability to perform all or substantially all of the requirements of this level of work has been impeded by additional limitations. To determine the extent to which these limitations erode the unskilled light occupational base, the Administrative Law Judge asked the vocational expert whether jobs exist in the national economy for an individual with the claimant's age, education, work experience, and residual functional capacity. The vocational expert testified that given all of these factors the individual would be able to perform the requirements of representative unskilled (SVP 2) occupations at the light exertion level, such as counter attendant [] with 48,000 jobs nationally and housekeeping cleaner [] with 135,000 jobs nationally.(ECF No. 16-3 at 30).
IV. Analysis
Bullock's sole argument for relief is that “[t]he ALJ's residual functional capacity determination is not supported by substantial evidence as [the ALJ] relied on the stale opinion of the State Agency consultants, resulting in the insertion of her own lay interpretation of the raw medical data.” (ECF No. 23 at 10). Bullock contends the ALJ's alleged lay interpretation of the medical record constitutes legal error. (Id.).
Bullock asserts:
On November 14, 2017, non-examining State Agency medical consultant Dr. Ostrowski determined the following: occasionally lift/carry 25 pounds; frequently lift/carry 10 pounds; stand/walk for a total of about 6 hours; sit for a total of about 6 hours; frequently climb ramps/stairs, balance, kneel, and crouch; and occasionally climb ladders/ropes/scaffolds, stoop, and crawl. T 109. Dr. Ostrowski opined Bullock demonstrated the maximum sustained work capability to perform light work. T 111.
In this case, the ALJ afforded the opinion of Dr. Ostrowski partial weight. T 27. In coming to her conclusion, the ALJ stated Dr. Ostrowski's opinion “overestimates [Bullock's] abilities with regard to lifting, carrying, and posttrial actives in light of [Bullock's] spinal impairment.” T 27. However, Dr. Ostrowski provided his opinion in November 2017. T 109.
This Court ruled in Spaulding v. Commissioner of Social Security Administration that “[b]ecause stale medical opinions guided the ALJ's evaluation of Plaintiff's functional limitations.... the available record did not provide substantial evidence to support the ALJ's RFC calculation.” No. CV-19-05747-PHX DMF, 2021 WL 321233, at *4 (D. Ariz. Feb. 1, 2021). In this case, Dr. Ostrowski provided his opinion more than two years prior to the decision. T 109. Since that time Plaintiff's condition had deteriorated where he was also experiencing disc desiccation. T 1698. Further, Plaintiff began to receive epidural steroid injections. T 855. The State Agency consultants did not have the ability to review this pertinent information.
Therefore, the opinion of Dr. Ostrowski became stale and the ALJ could not rely on it. Since the ALJ could not rely on the opinion of State Agency consultant Dr. Ostrowski, the only option available was to insert her own lay medical opinion. This Court has held that “while the ALJ is responsible for weighing the medical evidence, an ALJ may not substitute his own medical judgment for that of medical experts.” Cancanon v. Comm'r of Soc. Sec. Admin., No. CV-17-04319-PHX-GMS, 2019 WL 1099088, at *5 (D. Ariz. Mar. 8, 2019). See Nguyen v. Chater, 172 F.3d 31, 35 (1st Cir. 1999) (stating that the ALJ is simply not qualified to interpret raw medical data in functional terms). In this case, the probative evidence entered into the record exceeded the deference afforded to ALJ's when crafting the RFC. For example, on May 21, 2018, Dr. Goyle reviewed an MRI of the lumbar spine from March 28, 2018 which revealed: postoperative changes at ¶ 4-L5 and at ¶ 3-L4; mild to moderate spinal canal stenosis and moderate left neural foraminal narrowing at ¶ 2-L3; minimal bilateral neural foraminal narrowing at ¶ 3-L4; moderate right and mild to moderate left neural foraminal narrowing at ¶ 4-L5; and moderate left and mild to moderate right neural foraminal narrowing at ¶ 5-S1. T 853. Dr. Goyle determined to proceed with repeat caudal epidural steroid injection after review of the recent lumbar spine MRI as Plaintiff's most significant dissipation of pain was in the L4, L5, and S1 distribution. T 855. This evidence clearly shows Plaintiff's condition had deteriorated since the State Agency provided their review.
Further, on October 8, 2019, Plaintiff underwent an MRI of the lumbar spine which revealed: persistent moderate disc desiccation and mild disc bulge with mild facet arthropathy at ¶ 2-L3; moderate central thecal sac stenosis without cauda equina compression at ¶ 2-L3; persistent moderate disc desiccation with mild facet arthropathy and mild lateral recess narrowing at ¶ 3-L4; no changes in chronic ankylosis at the L4-L5 level; no change in severe disc desiccation with mild fact arthropathy producing mild right lateral recess narrowing and no central thecal sac stenosis at ¶ 5-S1; and mild neural foramen stenosis at ¶ 5-S1 bilaterally. T 1698. The ALJ in this case found “[Plaintiff] undoubtedly had significant degeneration of his lumbar spine that would reasonably affect his ability to perform work activity.” T 26. However, the ALJ was not permitted to interpret the diagnostic imaging in forming the RFC. Therefore, the ALJ impermissibly inserted her own lay medical opinion. This is error.
The ALJ's error in relying on her own lay interpretation of the raw medical data is harmful. The evidence establishes that Plaintiff's spinal conditions had deteriorated since the State Agency consultants gave their opinion. Plaintiff was 54 years old on the decision date. T 220. Under 20 C.F.R. Part 404, Subpart P, App'x 2 § 201.12 if a person who was closely approaching advanced age (50-55) was limited to sedentary work, they would GRID out and be found disabled. Further, the VE testified that if the ALJ's RFC were amended to sedentary exertional level, Plaintiff would not have any acquired skills that would transfer to occupations that could be performed. T 55. Thus, any reduction in exertional ability would result in Plaintiff being found disabled. This error warrants remand.(ECF No. 23 at 10-13).
The Nguyen court stated “[t]he ALJ was not at liberty to ignore medical evidence or substitute his own views for uncontroverted medical opinion” (emphasis added), when concluding that the ALJ improperly weighed a treating physician's opinion that the claimant was incapacitated by severe pain. Nguyen v. Chater, 172 F.3d 31, 35 (1st Cir. 1999). In the instant matter, other than the opinions of the consulting State agency physicians, there was no medical opinion addressing Bullock's ability to perform specific work-related tasks, such as sitting, standing, walking, etc., in the record before the ALJ.
If a claimant is closely approaching advanced age, has no transferable skills, and is limited to sedentary work, the ALJ must find that claimant disabled based on the sedentary grid. However, if a claimant with the same characteristics is able to perform light work, the Medical-Vocational Guidelines direct a conclusion of not disabled. See 20 C.F.R. Pt. 404, Subpt. P, App. 2, § 202.14 (directing a finding of “not disabled” for claimant who is closely approaching advanced age, who has no transferable skills, and who is functionally capable of performing light work); 20 C.F.R. Pt. 404, Subpt. P, App. 2, § 201.00(g) (directing a finding of “disabled” for claimant who is closely approaching advanced age, who has no transferable skills, and who is functionally limited to sedentary work).Selimovic v. Colvin, 2014 WL 4662251, at *11 (D. Ariz. Sept. 18, 2014). In this matter, the ALJ concluded: “Transferability of job skills is not material to the determination of disability because using the Medical-Vocational Rules as a framework supports a finding that the claimant is “not disabled,” whether or not the claimant has transferable job skills (See SSR 82-41 and 20 CFR Part 404, Subpart P, Appendix 2).” (ECF No. 16-3 at 30). The ALJ determined Bullock could adjust to other work, considering his residual functional capacity, age, education, and work experience:
In determining whether a successful adjustment to other work can be made, the undersigned must consider the claimant's residual functional capacity, age, education, and work experience in conjunction with the Medical-Vocational Guidelines, 20 CFR Part 404, Subpart P, Appendix 2. If the claimant can perform all or substantially all of the exertional demands at a given level of exertion, the medical-vocational rules direct a conclusion of either “disabled” or “not disabled” depending upon the claimant's specific vocational profile (SSR 83-11). When the claimant cannot perform substantially all of the exertional demands of work at a given level of exertion and/or has nonexertional limitations, the medical-vocational rules are used as a framework for decisionmaking unless there is a rule that directs a conclusion of “disabled” without considering the additional exertional and/or nonexertional limitations (SSRs 83-12 and 83-14). If the claimant has solely nonexertional limitations, section 204.00 in the Medical-Vocational Guidelines provides a framework for decisionmaking (SSR 85-15).
If the claimant had the residual functional capacity to perform the full range of light work, a finding of “not disabled” would be directed by Medical-Vocational Rule 202.21 and Rule 202.14. However, the claimant's ability to perform all or substantially all of the requirements of this level of work has been impeded by additional limitations. To determine the extent to which these limitations erode the unskilled light occupational base, the Administrative Law Judge asked the vocational expert whether jobs exist in the national economy for an individual with the claimant's age, education, work experience, and residual functional capacity. The vocational expert testified that given all of these factors the individual would be able to perform the requirements of representative unskilled (SVP 2) occupations at the light exertion level, such as counter attendant (DOT 311.477-014) with 48,000 jobs nationally and housekeeping cleaner (DOT 323.687-014) with 135,000 jobs nationally.(ECF No. 16-3 at 30). The ALJ may rely on the grids “only when the grids accurately and completely describe the claimant's abilities and limitations.” Jones v. Heckler, 760 F.2d 993, 998 (9th Cir. 1985). When a claimant's residual functional capacity is not described in the grids, i.e., when a claimant cannot perform the “full range” of work-related activities in either the “sedentary” or “light” categories, inter alia due to non-exertional limitations such as pain or postural limitations, the grids do not apply. Tackett v. Apfel, 180 F.3d 1094, 1102 (9th Cir. 1999).
With regard to the allegation that the ALJ committed legal error because her “only option” was to interpret the raw medical data herself when rendering a residual functional capacity, the Commissioner argues:
The RFC is supported by substantial evidence and there is no requirement that it mirror a medical opinion. Plaintiff argues that because the ALJ did not wholly adopt any opinion or medical finding, the ALJ impermissibly substituted her own lay opinions in formulating the RFC. This argument ignores the ALJ's role in the adjudicative process as described in the regulations.
.....Determination of a claimant's RFC is not a medical opinion, but a
legal decision expressly reserved to the Commissioner through her delegate, the ALJ. See 20 C.F.R. § 404.1546(c) (identifying the ALJ as responsible for determining RFC). “It is clear that it is the responsibility of the ALJ, not the claimant's physician, to determine residual functional capacity.” Vertigan v. Halter, 260 F.3d 1044, 1049 (9th Cir. 2001.(ECF No. 26 at 5-6).
The Commissioner further asserts:
... the ALJ did not translate raw medical data into functional limitations or render her own medical opinion, but rather relied on treatment notes, which encompassed subjective complaints and medical evidence, as well as Plaintiff's reported limitations and testimony in determining the RFC. There is no error in doing so. See Social Security Ruling (SSR) 16-3p (the ALJ is to consider a claimant's statement about his or her symptoms and their functional effects); Labine v. Comm 'r of Soc. Sec. Admin, 2020 WL 6707822, at *4 (D. Ariz. Nov. 16, 2020) (the regulations require the ALJ to assess the RFC based on relevant medical and other evidence, and to evaluate the support an opinion has on objective medical evidence and the record as a whole; “[t]he discharge of these regulatory duties is not tantamount to rendering a medical opinion.”), citing Landeros Zamora v. Comm 'r of Soc. Sec. Admin., No. CV-19-05119-PHX-DLR, 2020 WL 5810060, at *5 n.8 (D. Ariz. Sept. 30, 2020) (rejecting the same argument); Schott, 2019 WL 5782324, at *5 (D. Ariz. Nov. 6, 2019) (same); see also Kartje v. Comm 'r of Soc. Sec. Admin., No. CV-18-03240-PHX-SMB, 2020 WL 5887495, at *4 n.8 (D. Ariz. Oct. 5, 2020) (same);Khamis v. Comm r of Soc. Sec. Admin., No. CV19-05385-PHX-MTL, 2020 WL 5793409, at *3 n.7 (D. Ariz. Sept. 29, 2020) (same). (ECF No. 26 at 10-11).
The Court rejects Plaintiff's argument that the ALJ's analysis of the medical evidence constituted a “medical” opinion that he was not qualified to render as an “administrative adjudicator.” (Pl. Br. at 14.) The ALJ is specifically charged to “assess [a claimant's] residual functional capacity based on all of the relevant medical and other evidence,” 20 C.F.R. § 404.1545(a)(3), and to evaluate medical opinion evidence according to applicable regulatory standards, see 20 C.F.R. § 404.1527. The discharge of these regulatory duties is not tantamount to rendering a medical opinion. See Schott v. Comm 'r of Soc. Sec. Admin., No. CV-19-00389-PHX-JJT, 2019 WL 5782324, at *5 (D. Ariz. Nov. 6, 2019).Landeros Zamora v. Commissioner of Soc. Sec. Admin., 2020 WL 5810060, at *5 (D. Ariz. Sept. 30, 2020).
The Court rejects Plaintiff's argument that the ALJ “improperly substituted his opinion for that of [Plaintiff's] physicians.” (Pl. Br. at 16.) The ALJ is specifically charged to “assess [a claimant's] residual functional capacity based on all of the relevant medical and other evidence,” 20 C.F.R. § 404.1545(a)(3), and to evaluate medical opinion evidence according to applicable regulatory standards, see 20 C.F.R. § 404.1527. The discharge of these regulatory duties is not tantamount to rendering a medical opinion. See Schott v. Comm 'r of Soc. Sec. Admin., No. CV-19-00389-PHX-JJT, 2019 WL 5782324, at *5 (D. Ariz. Nov. 6, 2019).Kartje v. Commissioner of Soc. Sec. Admin., 2020 WL 5887495, at *4 (D. Ariz. Oct. 5, 2020).
An ALJ's determination of the claimant's residual functional capacity must be affirmed if “the ALJ applied the proper legal standard and [the] decision is supported by substantial evidence.” Bayliss v. Barnhart, 427 F.3d 1211, 1217 (9th Cir. 2005). It is the province of the ALJ to make a determination as to the claimant's specific residual functional capacity. See 20 C.F.R. § 404.1520(a)(4)(iv) (“At the fourth step, we consider our assessment of your residual functional capacity ...”); Elmore v. Astrue, 2011 WL 3471021, at *8 (D. Ariz. Aug. 8, 2011), citing 20 C.F.R. § 404.1546(c) (“...If your case is at the administrative law judge hearing level or at the Appeals Council review level, the administrative law judge or the administrative appeals judge at the Appeals Council (when the Appeals Council makes a decision) is responsible for assessing your residual functional capacity.”). The ALJ assesses all the evidence (including the claimant's descriptions of their limitations, treatment notes and medical testing reports) to determine the claimant's capacity for work despite his severe impairments. See 20 C.F.R. §§ 404.1545(b-d) & 416.945(b-d). The ALJ must base the residual functional capacity determination on the totality of the record. See 20 C.F.R. §§ 404.1527(d) & 404.1546(c). The ALJ must consider all relevant evidence, including medical evidence, the claimant's testimony, medical source opinions, and lay evidence. See 20 C.F.R. § 404.1545(a)(3).
Notably, when synthesizing the claimant's residual functional capacity, the ALJ is free to accept or reject some or all of a medical source's opinion regarding the extent of a severe impairment's impact on the claimant's specific residual functional capacity if, for example, that opinion is contradicted by other record medical evidence. Cf. Batson v. Commissioner of Soc. Sec. Admin., 359 F.3d 1190, 1195 (9th Cir. 2004) (holding an ALJ may discount a medical opinion which is not supported by the record as a whole or by objective medical findings); Thomas v. Barnhart, 278 F.3d 947, 956-57 (9th Cir. 2002) (holding an ALJ need not accept an opinion that is brief, conclusory, and unsupported by clinical findings). The ALJ is responsible for determining credibility, resolving conflicts in medical testimony, and for resolving ambiguities. See Benton v. Barnhart, 331 F.3d 1030, 1040 (9th Cir. 2003); Edlund v. Massanari, 253 F.3d 1152, 1156 (9th Cir. 2001). Because the claimant's residual functional capacity is a factual determination, this determination must be affirmed if it is supported by substantial evidence. See Celaya v. Halter, 332 F.3d 1177, 1180 (9th Cir. 2003); Saelee v. Chater, 94 F.3d 520, 521 (9th Cir. 1996); Lesley v. Berryhill, 261 F.Supp.3d 983, 986 (D. Ariz. 2017).
Bullock asserts the ALJ committed legal error by relying on the opinion of Ostrowski when formulating the residual functional capacity because that opinion was “stale,” arguing that because “the ALJ could not rely on the opinion of State Agency consultant Dr. Ostrowski, the only option available was to insert her own lay medical opinion.” (ECF No. 23 at 11). As a factual matter, as Bullock acknowledges, the ALJ gave Ostrowski's opinion only “partial weight,” i.e., the ALJ did not adopt the opinion in its entirety. (ECF No. 16-3 at 28). The ALJ acknowledged that Ostrowski's opinion did not take into account the subsequent medical providers' records with regard to Bullock's limitations arising from his back problems. The ALJ formulated Bullock's residual functional capacity based on the medical evidence available after Ostrowski opined as to the residual functional capacity. Notably, in assigning only partial weight to Ostrowski's November 2017 opinion, the ALJ determined the opinion overestimated Bullock's abilities with regard to lifting, carrying, and postural activities, in light of Bullock's spinal impairment.
Additionally, as the Commissioner notes with regard to Bullock's assertion that Ostrowski's opinion was “stale”:
... the record does not show a worsening of his condition since Dr. Ostrowski's opinion. Much like evidence reviewed by Dr. Ostrowski, Plaintiff presented with back spasms, reduced range of motion, reduced sensation, and tenderness to palpitation, but also largely normal neurological findings (AR 26). Plaintiff continued to present the same
symptoms after Dr. Ostrowski's findings, indicative of no worsening of symptoms, including instances of muscle spasms, reduced range of motion, and tenderness, cut against by evidence of normal gait (AR 26, citing AR 841, 870, 1749). Indeed, records available to Dr. Ostrowski noted that Plaintiff had 2/5 strength in his lower extremities in May 2016 (AR 65, 84, 322), about a year after Plaintiff's alleged onset date. Contrary to a worsening of his condition, more recent examinations in February 2019 and April 2019 show Plaintiff only had slight weakness on the right leg, measured as 4/5, and full strength on the left side (AR 841, 870). In sum, evidence dated after Dr. Ostrowski's opinion does not indicate that his condition worsened or that a new condition arose.
Plaintiff's argument is belied by the fact that there is always a gap in time between the non-examining physician's review at the initial and reconsideration levels and the ALJ's subsequent hearing decision.(ECF No. 26 at 9-10). As the Commissioner asserts, there “is always some time lapse between a consultant's report and the ALJ hearing and decision, and the Social Security regulations impose no limit on such a gap in time.” Meadows v. Saul, 807 Fed.Appx. 643, 647 (9th Cir. 2020). In this matter the ALJ properly addressed the record medical evidence submitted subsequent to Ostrowski's opinion, and accommodated that evidence in formulating the residual functional capacity.
The ALJ did not commit legal error because the residual functional capacity determined by the ALJ was not in line-by-line accordance with the opinion of a medical source. With regard to the allegation that the ALJ committed legal error because her “only option” was to interpret the raw medical data herself when rendering a residual functional capacity, the Commissioner argues:
As a matter of law, there is no requirement that the ALJ's RFC determination requires support or review by any physician. 20 C.F.R. § 404.1520c(a); Social Security Ruling (SSR) 96-8p. The ALJ has the obligation to consider the evidence and determine how consistent various opinions and prior administrative medical findings are with the evidence, and decide the RFC accordingly. Contrary to Plaintiff's argument that the ALJ was not qualified to consider the evidence, the ALJ was directed to make exactly this determination. See Schott v. Comm'r, No. CV-19-00389-PHX-JJT, 2019 WL 5782324 at *5 (D. Ariz. Nov. 5, 2019) (“Plaintiff, however, contends that the ALJ is not qualified, as an administrative adjudicator, to provide an independent analysis of medical evidence, that is,
decide on her own that there were insufficient findings in this record to support the treating physician's opinion ... The Court agrees with Defendant that it is precisely the ALJ's job to determine the weight to give a medical opinion”). Indeed, the Ninth Circuit has explicitly stated that an ALJ does not need to wholesale adopt all the limitations found in an opinion, even when giving some weight to that opinion. Magallanes v. Bowen, 881 F.2d 747, 753 (9th Cir. 1989) (when weighing a medical opinion, the ALJ need not agree with everything contained in that opinion and can consider some portions less significant than others). Accordingly, several courts, in reliance on Magallanes and other precedent, have stated that the RFC finding does not need to match exactly any particular medical opinion or prior administrative medical finding. See Wringer v. Colvin, [], 2016 WL 4035737, at *4 (D. Ariz. July 28, 2016) (“there is no requirement that the RFC mirror any specific medical opinion”).(ECF No. 26 at 5-7).
In support of this argument the Commissioner cites Turner v. Commissioner of Social Security Administration, 613 F.3d 1217, 1222-23 (9th Cir. 2010) (finding the ALJ properly incorporated a physician's observations in the residual functional capacity (“RFC”) determination while, at the same time, rejecting the implication that plaintiff was unable to “perform simple, repetitive tasks in an environment without public contact or background activity”); Bufkin v. Saul, 836 Fed.Appx. 578, 579 (9th Cir. 2021) (unpublished) (rejecting an argument that the ALJ relied on a “lay interpretation of medical evidence” and finding the “ALJ properly considered all of the various types of evidence in the medical record, including objective evidence such as x-rays, [claimant's] treatment history, and clinical findings, and properly translated and incorporated this evidence into an RFC finding”); Nathan K. v. Saul, 2021 WL 1226445, at *9 (S.D. Cal. Mar. 30, 2021) (finding the ALJ properly formulated the residual functional capacity even when it differed from all opinion evidence); Davis v. Berryhill, 2019 WL 852117, at *6 (E.D. Cal. Feb. 22, 2019) (“the ALJ is not precluded from making an RFC finding that differs from assessments contained in medical source statements”); Mayfield v. Colvin, 2015 WL 3657270, at *7 (N.D. Cal. June 12, 2015) (“The RFC finding is not required to match exactly the findings of any particular medical source”); Sullivan v. Commissioner of Soc. Sec., 2014 WL 6685075, at *4 (E.D. Cal. Nov. 25, 2014) (“the RFC need not exactly match the opinion or findings of any particular medical source”); Arnold v. Colvin, 2014 WL 2615721, at *4 (C.D. Cal. June 12, 2014) (rejecting the claimant's argument that the ALJ improperly rendered his own opinion and should have secured an updated consultative examination). All of these cases are on point and support the conclusion that the ALJ did not commit legal error by determining a residual functional capacity that did not align with that assessed by a medical source.
The claimant's residual functional capacity may be based on a wide variety of evidence in the record, including but not limited to the claimant's medical history, medical signs and laboratory findings, the effects of treatment, reports of daily activities, lay evidence, recorded observations, and medical source statements. SSR 96-8p (July 2, 1996). Because the claimant's residual functional capacity is a factual determination, this determination must be affirmed if it is supported by substantial evidence. See Celaya, 332 F.3d at 1180; Saelee, 94 F.3d at 521; Lesley, 261 F.Supp. at 986. The governing law allows the ALJ to “interpret” medical evidence when assessing a claimant's residual functional capacity, but requires the ALJ to “set out in the record his reasoning and the evidentiary support for his interpretation of the medical evidence.” Tackett v. Apfel, 180 F.3d 1094, 1102 (9th Cir. 1999), citing Lester v. Chater, 81 F.3d 821, 832 (9th Cir. 1995). “The residual functional capacity assessment must include a narrative discussion describing how the evidence supports each conclusion, citing specific medical facts (e.g., laboratory findings) and nonmedical evidence (e.g., daily activities, observations).” SSR 96-8p (July 2, 1996). The ALJ in this matter gave a narrative discussion of how the record evidence, including the consulting state agency physicians' opinions, Bullock's treatment notes, his reported activities of daily living, and his hearing testimony, supported the assessed residual functional capacity. Notably, the ALJ determined that Bullock's reports to his physicians of his activities of daily living did not comport with his hearing testimony regarding his daily activities. There was substantial evidence in the record to support the ALJ's conclusion that Bullock's severe impairments were not as limiting as Bullock alleged; in addition to the instances cited by the ALJ, Bullock appeared at the hearing using a cane, when none of the treating physicians' notes indicate that he appeared at an appointment utilizing a cane or any other assistive device, and as noted by the Commissioner many of the treatment notes indicate Bullock displayed a normal gait. In the records cited by Bullock, Dr. Goyle notes that Bullock's pain was alleviated by epidural steroid injections, and throughout the record Bullock reported that methadone controlled his pain. The ALJ may consider inconsistencies either in the claimant's “testimony or between his testimony and his conduct, his daily activities, his work record, and testimony from physicians and third parties concerning the nature, severity, and effect of the symptoms of which he complains.” Light v. Social Sec. Admin., 119 F.3d 789, 792 (9th Cir. 1997). Although the ALJ did not always directly link each piece of cited evidence to a particular statement made by Bullock, the ALJ nonetheless cited sufficient evidence in the record to enable this Court to reasonably discern their path and meaningfully determine that their conclusions are indeed supported by substantial evidence. See, e.g., Schott v. Commissioner of Soc. Sec. Admin., 2019 WL 5782324, at *2 (D. Ariz. Nov. 6, 2019).
The residual functional capacity assessed by the ALJ included limitations in addition to those assessed by the reviewing physician, i.e., Ostrowski, and there was no other medical source opinion contrary to the residual functional capacity found by the ALJ. Accordingly, the ALJ's process and reasoning in finding the residual functional capacity did not constitute legal error. See Herrera v. Commissioner of Soc. Sec., 2022 WL 1165850, at *15-20 (E.D. Cal. Apr. 20, 2022) (collecting, discussing, and distinguishing cases involving a “stale” reviewing physician's opinion when subsequent medical records were admitted into the record). Herrera is similar to this matter; in both cases the record did not contain any opinions from a treating or examining physician indicating that the claimant had limitations greater than those determined by the ALJ. Id., 20220 WL 1165850, at *20 & 21 (“Again, the ALJ did not err in considering the nonexamining state physician opinions as persuasive in one manner in the severity analysis, and finding them not persuasive as to the RFC analysis, and specifically did not err due to the fact the Plaintiff did receive medical imaging after the time of the state agency physician issued their findings.”). Additionally, there was substantial evidence to support the ALJ's residual functional capacity. Moreover, where evidence is susceptible to more than one rational interpretation, the ALJ's decision should be upheld. See Thomas, 278 F.3d at 954; Jamerson v. Chater, 112 F.3d 1064, 1067 (9th Cir. 1997) (“[T]he key question is not whether there is substantial evidence that could support a finding of disability, but whether there is substantial evidence to support the Commissioner's actual finding that claimant is not disabled.”). “Although the Court may not affirm the ALJ's decision based on grounds not set forth in the ALJ's opinion, the Court can consider evidence not specifically mentioned in the opinion if it was available to the ALJ and supports the ALJ's stated grounds for [the] decision.” Lopez v. Colvin, 194 F.Supp.3d 903, 910 n.1 (D. Ariz. 2016), citing Warre v. Commissioner of Soc. Sec. Admin., 439 F.3d 1001, 1005 n.3 (9th Cir. 2006).
In addition to asserting the ALJ's opinion contained legal error, Bullock asserts the error was not harmless. There was no legal error in the ALJ's determination of Bullock's residual functional capacity. However, even when the ALJ commits legal error, the Court is required to uphold the decision where that error is harmless. See Smith v. Kijakazi, 14 F.4th 1108, 1111 (9th Cir. 2021); Marsh v. Colvin, 792 F.3d 1170, 1172 (9th Cir. 2015); Treichler v. Commissioner of Soc. Sec., 775 F.3d 1090, 1099 (9th Cir. 2014). “An error is harmless if it is inconsequential to the ultimate nondisability determination, or if the agency's path may reasonably be discerned, even if the agency explains its decision with less than ideal clarity.” Treichler, 775 F.3d at 1099 (citations and internal quotation marks omitted), quoted in Brown-Hunter v. Colvin, 806 F.3d 487, 492 (9th Cir. 2015). See also Molina v. Astrue, 674 F.3d 1104, 1115 (9th Cir. 2012); Labine v. Commissioner of Soc. Sec. Admin., 2020 WL 6707822, at *1 (D. Ariz. Nov. 16, 2020). See also Ely v. Saul, 572 F.Supp.3d 751, 761 (D. Ariz. 2020). When determining whether any error was harmful, the Court must look to the record as a whole to determine whether any error altered the outcome of the case. See Stout v. Commissioner, Soc. Sec. Admin., 454 F.3d 1050, 1054 (9th Cir. 2006)); March v. Colvin, 792 F.3d 1170, 1172 (9th Cir. 2015).
The record as a whole in this matter supports the ALJ's conclusion that Bullock was not disabled, i.e., that he was capable of performing work existing in the national economy. As noted, supra, the residual functional capacity includes greater physical limitations than those found by the only medical opinion in the record as to Bullock's specific limitations, and there is no other medical source opinion evidence to the contrary. A distinguishing feature of this case is the absence of a treating or examining physician's opinion as to Bullock's specific limitations with regard to his ability to perform work-related tasks. See Matthews v. Shalala, 10 F.3d 678, 680-81 (9th Cir. 1993) (upholding the Commissioner's non-disability decision and emphasizing that “[n]one of the doctors who examined [claimant] expressed the opinion that he was totally disabled”); Curry v. Sullivan, 925 F.2d 1127, 1130 n.1 (9th Cir. 1990) (upholding the non-disability determination and noting that, after surgery, no doctor suggested the claimant was disabled); McGee v. Astrue, 368 Fed.Appx. 825, 828 (9th Cir. 2010) (finding the ALJ did not improperly weigh the medical evidence when concluding the claimant had impairments but was not disabled: “Importantly, none of the physicians who examined [the claimant] ‘expressed the opinion that [the claimant] was totally disabled' or that he could not return to work.”).
Bullock does not specifically argue that the ALJ erred by failing to further develop the record. The mere existence of medical records post-dating a state agency physician's review does not in and of itself trigger a duty to further develop the record. See, e.g., Charney v. Colvin, 2014 WL 1152961, at *7 (C.D. Cal. Mar. 21, 2014), aff'd, 647 Fed.Appx. 762 (9th Cir. 2016) (finding that the ALJ did not err in relying on the opinions of state agency physicians that did not account for subsequent medical records where subsequent records were considered by the ALJ and were not inconsistent with the assessed residual functional capacity). An ALJ's duty to conduct further inquiry is triggered only when the evidence is ambiguous or when the administrative record is inadequate to allow for proper evaluation of the disability claim. See Mayes v. Massanari, 276 F.3d 453, 459-60 9th Cir. 2001); Tonapetyan v. Halter, 242 F.3d 1144, 1150 (9th Cir. 2001). The evidence in the record in this matter was not ambiguous, and was not rendered ambiguous by the lack of a treating physician's opinion in the record opining as to Bullock's ability to do specific work-related tasks. Cf. Matthews v. Shalala, 10 F.3d 678, 680 (9th Cir. 1983) (emphasizing, in upholding the Commissioner's decision, that “[n]one of the doctors who examined [claimant] expressed the opinion that he was totally disabled”), cited in Lane v. Commissioner of Soc. Sec., 100 Fed.Appx. 90, 95-96 (3d Cir. 2004); Jimenez v. Apfel, 182 F.3d 92 (Table), 1999 WL 376786, at *1 n.3 (9th Cir. 1990) (noting, where non-treating physicians opinions were in the record: “Because the record here was adequately developed, the ALJ was under no obligation to re-contact [the claimant's] treating physician. See 20 C.F.R. § 404.1512(e).”). The record indicated Bullock had severe impairments, which the ALJ acknowledged, and that his spinal impairments required limitations in his ability to do work-related tasks, which the ALJ took into account when formulating the residual functional capacity. The ALJ determined, based on the testimony of the vocational expert, that there were jobs available in the national economy that Bullock could perform, given his residual functional capacity. Accordingly, any legal error was harmless.
Bullock's reply repeats the opening brief's recitation of the record on appeal, the governing law, and the sole argument for remanding this matter.
IT IS THEREFORE RECOMMENDED that the decision of the Commissioner denying Bullock's claims for disability-based benefits be affirmed and Bullock's claims for relief denied.
This recommendation is not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any notice of appeal pursuant to Rule 4(a)(1), Federal Rules of Appellate Procedure, should not be filed until entry of the District Court's judgment.
Pursuant to Rule 72(b), Federal Rules of Civil Procedure, the parties shall have fourteen (14) days from the date of service of a copy of this recommendation within which to file specific written objections with the Court. Thereafter, the parties have fourteen (14) days within which to file a response to the objections. Pursuant to Rule 7.2(e)(3) of the Local Rules of Civil Procedure for the United States District Court for the District of Arizona, objections to the Report and Recommendation may not exceed ten (10) pages in length. Failure to timely file objections to any factual or legal determinations of the Magistrate Judge will be considered a waiver of a party's right to de novo appellate consideration of the issues. See United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc).