Graham v. Comm'r of Soc. Sec. Admin.

Full title: Courtney Lynn Graham, Plaintiff, v. Commissioner of Social Security…

Court: United States District Court, District of Arizona

Date published: Jul 3, 2024

CV 23-00987 PHX JJT (CDB) (D. Ariz. Jul. 3, 2024)

Opinion

CV 23-00987 PHX JJT (CDB)

07-03-2024

Courtney Lynn Graham, Plaintiff, v. Commissioner of Social Security Administration, Defendant.

Camille D. Bibles, United States Magistrate Judge

TO THE HONORABLE JOHN J. TUCHI:

REPORT AND RECOMMENDATION

Camille D. Bibles, United States Magistrate Judge

The case was referred to the Magistrate Judge for a report and recommendation in accordance with the provisions of 28 U.S.C. § 636(b)(1) and Rules 72.1 and 72.2(a)(10) of the Local Rules of Civil Procedure for the District of Arizona.

I. Procedural Background

On July 17, 2006, Graham was awarded Title XVI Supplemental Security Income (“SSI”) and Title II Social Security disability insurance benefits, based on an affective disorder, with the disability beginning September 11, 2005. (ECF No. 15-4 at 2-3).¹ On December 13, 2013, the Commissioner determined Graham continued to be disabled. (ECF No. 15-3 at 20; ECF No. 15-4 at 4, 6; ECF No. 15-5 at 21).

1 Title II provides for payment of disability benefits to disabled individuals who are “insured” via contributions to Social Security as a tax on their earnings. SSI payments are made to disabled individuals who have limited income and resources. Graham's current eligibility for Title II benefits is not at issue, as her date last insured for Title II benefits expired in March of 2011. (ECF No. 15-6 at 25).

On August 22, 2018, the Commissioner determined Graham was no longer disabled. (ECF No. 15-3 at 18; ECF No. 15-4 at 7). On reconsideration this decision was affirmed by a state agency hearing officer. (ECF No. 15-3 at 18). A hearing was then conducted by an Administrative Law Judge (“ALJ”) on August 12, 2022. (ECF No. 173). In a decision entered May 27, 2022, the ALJ affirmed the determination that Graham's disability had ended and she had not become disabled again since that date. (ECF No. 15-3 at 15-37). The Social Security Appeals Council denied review on March 31, 2023 (ECF No. 15-3 at 1-7), making the ALJ's decision the final, appealable decision of the Commissioner.

II. Standard of Review

The Court's jurisdiction extends to review of the final decision of the Commissioner denying Graham'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 Graham's claim of disability and whether the record as a whole contains substantial evidence to support the ALJ's findings of fact. See 42 U.S.C. § 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, 587 U.S. 97, 102-03 (2019). Substantial evidence has been defined as the amount of relevant evidence a reasonable mind would accept as adequate to support a conclusion. Id. at 103.² See also Woods v. Kijakazi, 32 F.4th 785, 788 (9th Cir. 2022); Garrison v. Colvin, 759 F.3d 995, 1009 (9th Cir. 2014). Logically, a quantum of evidence is not substantial if it is outweighed by the evidence supporting a contrary conclusion. See Gossett v. Bowen, 862 F.2d 802, 805 (10th Cir. 1988) (“Evidence is not substantial if it is overwhelmed by other evidence ...”); Smith v. Kijakazi, 2022 WL 286543, at *8 (E.D. Cal. Jan. 11, 2022). The Court should uphold the Commissioner's decision “unless it contains legal error or is not supported by substantial evidence.” Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007). When “the evidence admits of more than one rational interpretation,” the Court must affirm the ALJ's decision. Allen v. Heckler, 749 F.2d 577, 579 (9th Cir. 1984).

2 The phrase “substantial evidence” is a “term of art” used throughout administrative law to describe how courts are to review agency factfinding. []. 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. []. And whatever the meaning of “substantial” in other contexts, the threshold for such evidentiary sufficiency is not high. Biestek v. Berryhill, 587 U.S. 97, 102-03 (2019) (internal citations omitted).

The Court must consider the record evidence in its entirety, weighing both the evidence that supports and detracts from the Commissioner's conclusion. Luther v. Berryhill, 891 F.3d 872, 875 (9th Cir. 2018). A reviewing court 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). Where “the evidence can reasonably support either affirming or reversing a decision,” the Court may not substitute its judgment for that of the Commissioner. Garrison, 759 F.3d at 1010. See also Shaibi v. Berryhill, 883 F.3d 1102, 1108 (9th Cir. 2017); Tommasetti v. Astrue, 533 F.3d 1035, 1038 (9th Cir. 2008). And, if the Commissioner's legal error was harmless, i.e., if there is substantial evidence in the record to support the Commissioner's conclusion on the challenged issue absent the legal error, the case need not be remanded for further proceedings. See, e.g., Ford, 950 F.3d at 1154; Zavalin v. Colvin, 778 F.3d 842, 845 (9th Cir. 2015).

III. Governing Law

Graham seeks Social Security benefits based on disability. Disability is defined as an “inability to engage in any substantial gainful activity” due to “a medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months.” 42 U.S.C. § 423(d)(1)(A).

Graham was previously found disabled due to an affective disorder. The Social Security Act and its implementing regulations are designed “to encourage individuals who have previously suffered from a disability to return to substantial gainful employment when their medical condition improves sufficiently to allow them to do so.” Flaten v. Secretary of Health & Human Servs., 44 F.3d 1453, 1458 (9th Cir. 1995). Accordingly, a claimant who has been awarded disability benefits is required to undergo periodic disability reviews, “to determine whether a period of disability has ended.” Id. at 1460. See also Schweiker v. Chilicky, 487 U.S. 412, 415 (1988); Lambert v. Saul, 980 F.3d 1266, 1268 (9th Cir. 2020). A claimant receiving disability benefits is no longer entitled to those benefits when substantial evidence demonstrates medical improvement such that the claimant has become able to engage in substantial gainful activity. See, e.g., Attmore v. Colvin, 827 F.3d 872, 873 (9th Cir. 2016).

In order to determine whether a claimant's disability is continuing or has ceased and, therefore, whether the claimant is still entitled to disability benefits, ALJs are required to follow an eight-step process. See 20 C.F.R. § 404.1594(f). At step one, the ALJ determines whether the claimant is engaged in “substantial gainful activity.” Id. § 404.1594(f)(1). Substantial gainful activity is work activity that involves “significant physical or mental activities,” and is done “for pay or profit.” Id. §§ 404.1572(a)-(b). At step two, the ALJ analyzes whether the claimant's impairment meets or equals an impairment described in the Listing of Impairments found in 20 C.F.R. Part 404, Subpart P, Appendix 1. Id. § 404.1594(f)(2). If no Listing is met the analysis proceeds to step three. Id.

At the third step the ALJ determines whether medical improvement has occurred since the latest determination of disability. Id. § 404.1594(f)(3). If medical improvement resulted in a decrease in the medical severity of the claimant's impairments, the analysis proceeds to the next step. If no medical improvement occurred, the analysis skips to step five. Id. If there has been medical improvement, at step four the ALJ determines whether the medical improvement is related to the claimant's ability to work. Id. § 404.1594(f)(4). If the improvement is related, the analysis skips to step six. Id. However, if the improvement is not related, the analysis proceeds to step five. Id.

At step five the ALJ analyzes whether any exception to medical improvement exists. Id. § 404.1594(f)(5).³ If no exception applies to the claimant, the ALJ must still find the claimant to be disabled. Id. If one group of exceptions applies to the claimant, the analysis advances to step six. Id. § 404.1594(d). If an alternative group of exceptions applies to the claimant, the ALJ will find that the claimant's disability has ended. Id. §§ 404.1594(e) & 404.1594(f)(5).

3 Exceptions include whether the claimant has been the beneficiary of advances in medical or vocational therapy or technology related to their ability to perform basic work activities. See 20 C.F.R. § 404.1594(d)

At step six, the ALJ evaluates whether the claimant's impairments are sufficiently severe to limit their physical or mental abilities to do basic work activities. Id. § 404.1594(f)(6). If the impairments are not sufficiently severe, the claimant is no longer disabled. Id. Otherwise, the analysis proceeds to step seven. Id.

At step seven, the ALJ assesses the claimant's current residual functioning capacity (“RFC”) to determine whether they can perform any past relevant work. Id. § 404.1594(f)(7). If the claimant can perform any past relevant work, the claimant is no longer disabled. Id. If the claimant is unable to perform past relevant work, at step eight the ALJ determines whether the claimant can perform any other substantial gainful activity. Id. § 404.1594(f)(8). If so, the claimant is no longer disabled. Id.

During the third step of this evaluation the Commissioner determines whether the claimant has experienced “medical improvement.” Id. § 404.1594(f)(3). “A determination that there has been a decrease in medical severity must be based on changes (improvement) in the symptoms, signs and/or laboratory findings associated with [the individual's] impairment(s).” Id. §§ 404.1594(b)(1)(i) & 416.994(b)(1)(i). Medical improvement must be related to the claimant's ability to work. Id. § 404.1594(a). Medical improvement is related to the claimant's ability to work when there is an increase in the claimant's functional capacity to do basic work activities. Id. § 404.1594(b)(3). “Basic work activities” means the abilities and aptitudes necessary to do most jobs. Id. § 404.1594(b)(4). To determine whether the claimant's impairments have “improved,” the ALJ uses as a reference point the “comparison point decision date” (“CPD”), which is defined as “the most recent favorable medical decision that [the claimant was] disabled or continued to be disabled.” Sherman v. Commissioner of Soc. Sec. Admin., 2021 WL 5492541, at *6 (D. Ariz. Nov. 23, 2021).

“[T]here is no presumption of continuing disability under the Social Security Act.” Lambert v. Saul, 980 F.3d 1266, 1268 (9th Cir. 2020). The burden remains on the claimant to establish they are disabled. See id. at 1274-75. It is well established that a claimant bears the burden of providing medical and other evidence that support the existence of a medically determinable impairment. Bowen v. Yuckert, 482 U.S. 137, 146 (1987); Tidwell v. Apfel, 161 F.3d 599, 601 (9th Cir. 1998) (“At all times, the burden is on the claimant to establish her entitlement to disability insurance benefits.”). Indeed, it is “not unreasonable to require the claimant, who is in a better position to provide information about [their] own medical condition, to do so.” Bowen, 482 U.S. at 146 n.5. However, in the context of a case wherein the claimant was previously found disabled, the Commissioner bears the burden of showing the claimant is no longer disabled based on medical improvement; this burden is met when there is substantial record evidence supporting such a conclusion. See Koch v. Kijakazi, 4 F.4th 656, 663 (8th Cir. 2021); McCalmon v. Astrue, 319 Fed.Appx. 658, 660 (9th Cir. Mar. 18, 2009); Knapp v. Barnhart, 68 Fed.Appx. 951, 952 (10th Cir. 2003); Jaramillo v. Massanarai, 21 Fed.Appx. 792, 794 (10th Cir. 2001); Meabon v. Berryhill, 2018 WL 6605816, at *3 (D. Ariz. Dec. 17, 2018).

IV. Record on Appeal

Graham was born in 1982 and was 24 years of age when she was awarded disability benefits in July of 2006, with a finding that she became disabled in 2005 due to a mental impairment, i.e., an “affective disorder.” In 2013 the Commissioner reviewed Graham's disability status and found disability had ceased, but upon reconsideration Graham's disabled status was continued. (ECF No. 15-4 at 4; ECF No. 15-5 at 22).

Graham completed high school and attended pharmacy technician classes. (ECF No. 15-7 at 20). She reported she never learned to drive a car. (ECF No. 15-7 at 25). Graham had minimal earnings in 1998, 1999, and 2000. (ECF No. 15-6 at 17, 20). Graham worked as a clerk and as a pharmacy technician at Walgreens from 2000 through 2005. (ECF No. 15-7 at 16). She earned approximately $13,000 in 2001 and 2002; and earned $16,784 in 2003 and $18,842 in 2004. (ECF No. 15-6 at 17-18). Graham earned $19,789 in 2005 and $1875 in 2006. (ECF No. 15-6 at 18). She reported the pharmacy technician job required her to walk, stand, climb, stoop, kneel, crouch, and crawl for eight hours each day. (ECF No. 15-7 at 16). She reported that job required her to lift up to 50 pounds, i.e., boxes of files and drugs, “constantly during the day - as needed.” (Id.).

In her initial application for benefits, filed January 1, 2006, Graham averred she became disabled on September 21, 2005, which was her last day of work. (ECF No. 15-7 at 3). Graham alleged disability due to lumbar spine stenosis, a herniated disc, morbid obesity (Graham, who is 5'5” tall, weighed 270 pounds at that time), fibromyalgia, back pain, and irritable bowel syndrome (“IBS”). (ECF No. 15-7 at 15). At that time Graham did not assert she suffered from a disabling mental health condition, nor was she under any type of care for an emotional disorder. (ECF No. 15-7 at 18). She asserted she was “unable to sit or stand for very long,” could not “bend very well,” was “in a lot of pain,” and could not concentrate. (ECF No. 15-7 at 15). She asserted she was “groggy and out of it--I'm useless--when I take my meds.” (Id.). She reported her medications as dicyclomine for IBS, with no side effects; Lomotil, for IBS-related diarrhea, which caused cramping; morphine, for arthritis-related pain, which caused sleepiness and “head cloudy;” and Zofran for vomiting related to IBS, with the notation that: “I eat alot. The nausea goes away, and it makes me stuff my face.” (ECF No. 15-7 at 20).

On March 30, 2005, Graham was seen by Dr. Conen at Clinical Associates in Internal Medicine. (ECF No. 15-8 at 15). A letter from Dr. Conen to Graham's primary care provider states:

This patient was seen for follow-up in my office on 3/30/05. She had gained 18 lbs. of weight. She emphasized her need for binge eating in the evenings and her husband was present. Postprandial [post-dinner] diarrhea is ongoing. She has not been able to follow a prescribed diet and stool studies reviewed were within normal limits.

She has bowel movements postprandially. Some are urgent with nausea and vomiting is recurrent. ..

Review of prior endoscopic evaluation revealed normal findings with negative biopsies, including the small bowel.

Physical examination was nonrevealing in this morbidly obese white female with ongoing functional symptoms, including diarrhea. Much of her symptoms are dietary and the need for binge eating speaks for itself. She reports not eating during the daytime. Prevacid should be continued. Dicyclomine [] was added to the regimen to decrease the gastrocolic reflex. Laboratory studies in December were essentially nonrevealing. Colonoscopic findings were normal, including random biopsies, ruling out microscopic colitis, leaving the finding ... consistent with autoimmune and inflammatory disease, not likely referable to the gastrointestinal tract. However, a small bowel x-ray will be scheduled and I will evaluate further on present therapy. Hematologic evaluation is in process and pain management will be required for this patient.

(ECF No. 15-8 at 15-16) (emphasis added).

Imaging of Graham's lumbar spine in June of 2005 revealed:

I. Disc degeneration at ¶ 3-4 and L4-5 with a marked central disc herniation at ¶ 3-4 causing a moderate spinal stenosis.

2. At ¶ 4-5 there is disc degeneration with a tear of the outer annular fibers. There is a diffuse central disc protrusion. It does cause effacement of the anterior aspect of the thecal sac. I do not see definite spinal stenosis or nerve root compromise.

(ECF No. 15-8 at 80) (emphasis added).

Graham saw Dr. Anghel at Pain Management & Rehabilitation Medicine Center on August 24, 2005, while she was still working. The treatment notes state:

. having complaints of back pain for a few years. . Location of the pain is in the mid low back area. The pain is deep, sharp, stabbing associated with radiation across the lateral aspect of the hips and anterior lateral aspect

of the thighs more pronounced on the right side. Pain is worse with bending, standing, lifting, Valsalva like maneuvers, working overhead. Secondary location of the pain muscle spasm in the mid back area, as well as, in the left upper trapezius. Quality of the pain in the back and neck area is sharp, throbbing, shooting, stabbing, tender, numb. It is worse in the morning and worse with activity. She is complaining of numbness in the low back area. She is ready to start physical therapy.

(ECF No. 15-8 at 24).

Treatment notes by Dr. Anghel dated September 30, 2005, state:

The two epidural injections done at two separate levels, did not cause any relief. As a matter of fact, she is having more pain, which is localized mostly to the thoracolumbar area and is associated with muscle spasms. The patient suffers from obesity. ... She has diffuse tenderness in the thoracolumbar paraspinal area with normal motor examination on manual muscle testing.

1. The patient had failed to improve with conservative care. She is not interested in physical therapy since she is afraid that will may make her symptoms worse. ... In terms of pain medication, she had tried Vicodin, [and] Ultracet, which did not help so I am not aware of another opiate that may be able to help since all them have the same potency.

2. In terms of water therapy, it is out of the question since she has a swimming pool at home and she feels worse when she goes into the swimming pool and tries to do some exercise. I instructed the patient that she needs to contact her primary physician and be evaluated for possible bariatric surgery or other weight losing procedures that would help her in the long run. She should see a spine surgeon in the meantime for a consultation although her weight may be a contraindication to any type of spinal surgery. In terms of interventional pain control or any other forms of pain management, there is nothing else I can do for the patient at this point in time.....

(ECF No. 15-8 at 23).

On November 22, 2005, Graham was seen by Dr. Slaughter of Sonoran Spine Center, for an orthopedic spinal consultation. (ECF No. 15-8 at 30). Graham complained of low back and right anterior thigh pain. (Id.). Dr. Slaughter noted and opined:

. female who has had a five-year history of increasing low back pain. TREATMENTS: [Fluoroscopically guided bilateral L4 and LS selective transforaminal epidural] injections., trigger point injections, multiple

narcotic medications and pain management. She rates her pain as being anywhere from a 6 to a 10 on a 10 point analog scale.

She denies any problem with sleep disturbance secondary to pain. The patient is currently not working secondary to pain and she is on disability for this.⁴

... This is a 5'5” female weighing approximately 290 pounds who ambulates with a normal gait. She can heel and toe walk without any difficulty. She had normal coordination and normal postural and spinal balance. Range of motion: The patient had decreased flexion and extension of the lumbar spine with pain upon flexion and extension. Palpation: The patient was tender to palpation everywhere that I palpated.....Lower extremity examination reveals full and pain free motion in the hips, knees and ankles.

... X-rays of the lumbar spine reveal a normal appearing lumbar spine. There are no ... significant degenerative changes noted. MRI taken from Arizona Medical Imaging Network on July 25, 2005 shows degenerative disc disease at ¶ 3-4 and L4-5. There is a disc herniation noted at ¶ 3-4 with an annular tear at ¶ 4-5.

... At the present time we feel that [Graham] does have some surgical issues that could be addressed surgically; however, due to her obesity, fibromyalgia and tolerance to high amounts of pain medication, she is not a good surgical candidate. Prior to offering her a surgical work-up we would like her to at least get down to 200 pounds or below and get off as much narcotic medications as possible as managing her pain postoperatively would be difficult at best..... [Graham] would definitely benefit from a gastric bypass surgery to reduce some of her weight. [Graham] tells me that her insurance at the present time will not authorize such a procedure. I told [Graham] that I would be happy to write a letter to the insurance company outlining her current spinal condition and possible benefits from gastric bypass surgery for weight reduction. [Graham] tells me that she will give me the contact information so I can make this possible.

(ECF No. 15-8 at 30-32, 26) (emphasis added). The record does not demonstrate Graham followed-through with providing contact information to her physician.

4 At this time Graham was receiving disability benefits from her employer; she did not file her application for Social Security benefits until January 30, 2006.

On May 20, 2006, at the behest of the state agency, Graham was seen by Dr. Bencomo, a clinical psychologist, for a psychiatric evaluation. (ECF No. 15-8 at 88). Inter alia, she reported she lived with her parents and had never attempted to live independently. (Id.). Graham reported her medications as Lomotil, Bentyl (dicyclomine), Zofran, and methadone. (Id.). She reported completing one semester of college but had no job training. (Id.). She reported spending her days playing video games, reading, and watching television. (ECF No. 15-8 at 89). Graham reported being irritable, with poor concentration, and being forgetful. (Id.). Graham reported depression, including crying spells, fatigue, diminished concentration, and feelings of worthlessness. (Id.). With regard to “manic” symptoms, Graham reported irritable mood, short-lived inflated self-esteem, and “spending money she doesn't have.” (Id.). She reported “hear[ing] noises.” (Id.). Graham told Dr. Bencomo she had received counseling as a teen, and that she was referred to a psychiatrist by her rheumatologist: “Medication was prescribed but she never went back to the psychiatrist because she could not afford to see him.” (ECF No. 15-9 at 90). Graham reported she ceased working “because of her back problems.” (Id.). Graham rated her current pain as a 9, and walked with a slight limp, but did not shift in her seat. (ECF No. 15-8 at 91). The doctor opined she functioned “in the low average to average range of intelligence,” and “attention and short term memory are good to fair.” (Id.). The doctor found Graham's reported “symptoms consistent with bipolar disorder, currently depressed,” and that her prognosis was good with psychiatric care, and she was given a referral to a psychiatrist (“Value Options”). (Id.). With regard to her mental ability to perform work-related activities, the only finding of “poor” was her ability to complete a workday and workweek without interruptions from psychologically-based symptoms. (ECF No. 15-8 at 92).

In 2006 Graham was awarded disability benefits due to an affective disorder and anxiety disorder, rather than her physical impairments, based on an inability to complete a workday and workweek without interruptions from psychologically based symptoms. Although Graham was found to have “severe” physical impairments, the Commissioner determined these impairments did not render her completely disabled, i.e., these impairments only limited her to a range of sedentary or light work.

Shortly before the “comparison point decision” in 2013, in 2012 Graham reported her medications as Bentyl (a muscle relaxant) for IBS, Imitrex for migraines, Lomotil (an anti-diarrheal) for IBS, Lyrica and morphine for pain, “somo” (presumably Soma) for muscle spasms, and Zofran (an anti-nauseant) for IBS. (ECF No. 15-7 at 45). Graham reported a typical day as sitting or remaining in bed until any stiffness dissipated, then reading or watching television until the afternoon, “reading usually.” (ECF No. 15-7 at 46). In the evening she would spend time with her husband and read. (Id.). She reported difficulty dressing, bathing, preparing meals, doing chores, using public transportation, shopping, managing money, walking, standing, lifting, using her hands, sitting, concentrating, remembering, and completing tasks, but reported she had no problem getting along with people, understanding or following directions, taking her medication, and feeding herself. (ECF No. 15-7 at 47).

In 2013, when Graham's status was under periodic review, Graham alleged disability based on psoriatic arthritis, fibromyalgia, IBS, and spinal stenosis, but did not assert a disabling mental condition. (ECF No. 15-7 at 41). The only reference made by Graham to any mental health disorder was in a continuing disability review report completed in 2013, wherein she made passing reference to being seen at West Valley Pain Management from 2005 through April of 2012, for “fibromyalgia, psoriatic arthritis, spinal stenosis, bipolar (sleep problems),” and reporting these physicians “discussed bipolar affecting sleep/pain, given meds, and referred to psych (can't afford).” (ECF No. 15-7 at 44).

In a May 1, 2013, in-person interview with a Social Security employee, the interviewer noted Graham was “clean,” “seem[ed] to be in pain,” and walked “slowly,” but the interviewer noted there were no issues with Graham's ability to read, understand, concentrate, talk, sit, stand, or use her hands. (ECF No. 15-7 at 50).

In a disability report dated May 1, 2013, Graham reported no change for better or worse in her illnesses since December of 2012. (ECF No. 15-7 at 52). She reported she could not cook, clean, or shop, and she could not stand for more than 20 minutes or walk for more than 15 minutes. (ECF No. 15-7 at 55). She reported that in 2012 she took an online course in medical billing, which she completed in March of 2013, and that she had graduated but was not yet “certified.” (ECF No. 15-7 at 45, 54). Graham also reported she had not “been able to see any doctors since” October of 2012, because she did “not have any health ins.” (ECF No. 15-7 at 54).⁵ She stated she was not able to take any medication due to the lack of insurance, and she had “just found out” she was pregnant. (ECF No. 15-7 at 55). She also stated she had seen a pain management doctor in Texas, “first time seeing him was 2009 and the last time was 10/2010. This was my pain management doctor.” (Id.).⁶

5 Graham's Social Security disabled status was initially ceased in April of 2013, and the period of disability terminated as of June 30, 2013. Accordingly it is unclear why she would not have been covered by disability insurance, i.e., Medicaid, in October, November, or December of 2012, and January, February, and March of 2013.

6 Graham was seen at Irving Orthopedics & Sports Medicine in Irving, Texas, from February of 2009 through September of 2009. (ECF No. 15-8 at 112-24). A note dated September 9, 2009, states Graham had a “history of lower back pain as well as lumbar stenosis at ¶ 3/4.” (ECF No. 15-8 at 112). Graham was “doing well” with MS Contin, Lyrica, and Soma, which “helps her function and allows her to do her activities of daily living.” (Id.). There was no diagnosis of degenerative disc disease. (Id.).

In a function report filed August 27, 2013, Graham reported she spent the day watching news, reading, and napping. (ECF No. 15-7 at 58). She stated she sometimes watched her nieces, prepared easy meals, and sometimes filled her dogs' food dishes. (Id.). She reported her pain was worse at night, asserting she had nightmares and was anxious. (Id.). She stated: “Can't win. Figure sleep won't happen after I give birth so really, I've had years of training in the art of going without sleep.” (Id.). She stated her husband helped with their pets' care, and he assisted her with dressing, cooking, and household chores. (ECF No. 15-7 at 59). She stated her mother-in-law did most of the cooking. (Id.). Graham reported she could occasionally do laundry or vacuum, and that “[a]nything I do usually leaves me in bed afterwards, so it better be worth it.” (ECF No. 15-7 at 60). She stated that once a week she would go to a doctor appointment and then a store or her mother's house, or “maybe an outing with my husband.” (Id.). She stated that once a week she would shop for groceries for about an hour. (Id.). She also spent time watching television with her in-laws, and she listened to audio books with her husband. (ECF No. 15-7 at 61). She avoided others, “especially if they have drama going on,” and did not “like people anymore.” (ECF No. 15-7 at 62). Graham's only medication at that time was Zofran, which caused sleepiness and headaches. (ECF No. 15-7 at 64). Graham reported that she received

..a diploma in Billing & coding because I wanted to be able to work from home on my own schedule, but now writing and typing hurts so bad. Thanks for the new form to fill out, by the way. Travel is questionable. I get [diarrhea] when I go anywhere and eating out is rare because of nausea and [diarrhea]. The best part about being pregnant so far is constipation and now, the lack of nausea. I can go places with less consequences and I'm pushing myself to move and stand and walk more. I can make myself go out for a shopping trip, but I pay for it .. I'm depending on elderly in-laws to help and they can't do much either. My husband can only do so much, he needs to work so we can afford to live. I'm so S.O.L. .. After I give birth I plan on resuming pain management, getting [rheumatology] treatments and receiving mental care.

(ECF No. 15-7 at 64-65).

On December 9, 2013, Graham was seen by Dr. Peetoom for a psychological evaluation, at the behest of the state agency. (ECF No. 15-8 at 191). The doctor noted Graham presented a Texas driver's license. (Id.). Graham was well-groomed, alert, and cooperative. She was wearing wrist braces, and her posture and gait were normal. (Id.). She told Dr. Peetom: “I'm broken. I have a lot of physical issues.” (Id.). Graham reported she had arthritis and carpal tunnel pain in both hands and was therefore unable to use her training in medical billing and coding. (ECF No. 15-8 at 192). She reported that, at that time, she was not taking pain medications and the morphine and muscle relaxers she had previously taken were discontinued “because of loss of insurance coverage.” (Id.). Graham reported she was not currently receiving psychiatric or psychological treatment, and that she had not been in mental health treatment since adolescence. (Id.). She stated a “treating physician” had diagnosed her as bipolar. (Id.). “She recalled taking SSRIs,” and “reported a history of multiple suicide attempts” “involv[ing] overdoses of medications.” (Id.). Graham reported poor sleep, ruminating, and avoiding people. (Id.). Graham reported passive suicidal ideation “almost nightly.” (Id.). Graham reported she “no longer drives because, ‘I don't have the skills.'” (ECF No. 15-8 at 192) (emphasis added). Graham reported she and her husband owned their home, where they lived with her inlaws and infant son. (ECF No. 15-8 at 193). Graham reported that in the prior year “she was smoking potpourri for a period of time,” which she was “purchasing ... through a smoke shop.” (Id.). Graham reported she ceased smoking cigarettes in 2012. (Id.). Graham scored 29 out of 30 points on the MMSE. (Id.). The diagnostic impression was bipolar disorder, current episode depressed, mild. (ECF No. 15-8 at 194). The doctor opined it was unlikely Graham's mental health would improve without seeking treatment, also noting Graham did not demonstrate significant pain behavior other than being slow to stand. (Id.). The doctor further opined cognitive functioning was intact, and Graham was able to interact appropriately. (Id.).

With regard to the finding of disability in 2013, i.e., the “comparison point decision,” it was determined that Graham's physical impairments allowed her to do simple, light work,⁷ and she maintained the residual functional capacity to understand, remember, and carry out simple instructions on a limited basis, and her ability to engage in social interactions and adaptation were adequate, but due to a mental impairment (an “affective” disorder) she could not work within a schedule, or sustain an ordinary routine, nor could she complete a normal work week on a continuing basis. (ECF No. 15-3 at 2021; ECF No. 15-4 at 8, 16).

7 In 2013 Graham was found to have the following medically determinable physical impairments: irritable bowel syndrome, morbid obesity, lumbar spondylosis with spinal stenosis, psoriatic arthritis, migraines, and fibromyalgia.

On May 4, 2017, approximately a year before Graham was determined to be no longer disabled as of 2018, she was seen by a physician's assistant (“PA”) at Arizona Arthritis & Rheumatology Associates (“AARA”). (ECF No. 15-9 at 35). The treatment notes state:

The patient is a 34 year old female who presents with a complaint of Joint pain. ... pt presents as a second visit to our practice, last seen 4/18/17. She presents with joint pain in her hands and feet and lower back since age 21 [three years prior to ceasing to work]. She has had psoriasis on her scalp and notes some minor flakes today. She believes she has a [family history] of psoriasis as well. . She has had a prior diagnosis of PSA [psoriatic arthritis] from Dr Soloman her previous rheumatologist 5 years ago. She previously failed Sulfasalazine, Methotrexate (helpful but affected her liver so stopped previously and felt effect wore off and declines wanting to retry this), Humira (not helpful). She reports having great success with Remicade and is interested in restarting this. Medrol dose pack didn't seem to help joint pain and made her feel worse and [] “goofy”.

Pain is described as gradual onset and has been going on since age 21. At one point she had so much pain in hands 4 yrs ago she couldn't use her hands and it got better after pregnancy. The patient describes the pain as achy. The pain is described as episodic. The symptoms occur daily. The course is described as worsening. Pain is relieved by heating pad, Tens unit, warm showers or baths and exacerbated by activity, cold weather or humidity or rain. The patient has morning stiffness sometimes (not daily) that lasts <10 minutes.

She has history of DDD in lumbar spine dx in 2004. She has had pain management in past and had epidurals in her lower back which helped some, but not alot with 3 different doctors 3 rounds.

. prior history of Fibromyalgia with widespread muscle pain and fatigue. Today her biggest complaint is some leg cramps that keep her awake at night and also when she sits too long she has to stand to walk which she feels is embarrassing like when she goes to a movie theater. . Pt denies oral ulcers, sicca [symptoms],⁸ rashes, photosensitivity rash, Raynaud's. She has depression and bipolar in past but doesn't see psychiatrist.

CURRENT [medications]: Gabapentin [], Tizanadine [] (a muscle relaxer). She doesn't feel Tizanadine is helping much and would like an alternative therapy. . She is currently on disability since age 25 from combination of dx. She has 3 year old at home.

(ECF No. 15-9 at 35) (emphasis added).

8 Sicca syndrome, sometimes referred to as Sjogren's, can produce symptoms similar to other autoimmune conditions. People with sicca can experience a persistent cough or possibly painful skin rashes. Sicca syndrome often results in symptoms that are very similar to fibromyalgia.

A review of symptoms was positive for fatigue, neck pain, abdominal pain and diarrhea, joint and muscle pain, numbness, and weakness. (ECF No. 15-9 at 36). Graham reported her pain level as a 7 out of 10. (Id.). Graham was not in acute distress, and the provider noted psoriasis on her scalp and 11 of 18 fibromyalgia tender points. (ECF No. 15-9 at 37). The assessment was a “possible diagnosis” of psoriatic arthritis, fibromyalgia, and bipolar depression. (ECF No. 15-9 at 45). Graham was started on Remicade for psoriatic arthritis, and it was recommended she see a psychiatrist. (ECF No. 15-9 at 45). The provider also noted potential degenerative joint disease of the lumbar spine. The treatment notes advised, under “Plan”:

... possible PSA with current psoriasis on scalp with pain in hands and feet. She wasn't responsive to steroids previously but carries this diagnosis from Dr. Soloman and had prior treatment with Remicade which worked well for her previously. Discussed otezla but needing to watch for depression mood changes, she declines and prefers to continue Remicade as this treatment worked well for her previously.....

Fibromyalgia: Will stop Tizanadine since she doesn't find 4mg to be helpful. Will switch to Skelaxin [] up to twice daily as needed. She doesn't drive. If cost prohibitive pt says will take Cyclobenzaprine if needed. Baclofen wasn't helpful previously. Remain on Gabapentin .... Can consider sleepy study as she does have snoring and sleep apnea can worsen Fibromyalgia if untreated.

With history of Bipolar we would recommend establishing with Psychiatrist. We have reservations of [prescribing] SSRI or SNRI without ... so would suggest avoiding this treatment for her.

(ECF No. 15-9 at 45).

Graham was seen at Arizona Digestive Health on June 9, 2017, complaining of IBS, abdominal pain, blood in her stools, and nausea. (ECF No. 15-8 at 216). At that time her weight was 273 pound. (ECF No. 15-8 at 218). Graham reported her symptoms had become more severe, and that she experienced diarrhea more than ten times per day. (ECF No. 15-8 at 216). “She also reports nocturnal stools..” (Id.). Graham reported nausea and vomiting occurring at least once per week. (Id.). Graham reported Imodium and Kaopectate provided minimal relief and Zofran was “helpful” in managing the nausea and vomiting. (Id.). Graham's last colonoscopy and upper endoscopy were performed in 2005, i.e., twelve years prior. (ECF No. 15-8 at 217). Graham reported being a current every day smoker. (Id.). Graham complained of shortness of breath with exercise, loss of appetite, weight gain, abdominal pain, bloating, diarrhea, gas, nausea, rectal bleeding, and vomiting, and denied joint pain, muscle weakness, and stiffness. (Id.). She complained of arthritis, back pain, headaches, numbness, tingling, and denied migraines, memory loss, anxiety, depression, difficulty sleeping, and confusion. (Id.). Graham's gait was normal and her musculoskeletal condition was deemed “adequate to undergo exercise testing and/or participation in exercise programs.” (ECF No. 15-8 at 218). The doctor noted normal memory, and that there was no evidence of depression, anxiety, or agitation. (Id.). Tests were ordered and Graham was instructed to follow-up after the tests were performed. (Id.).

Graham was seen by Dr. Bailes on June 27, 2017, for a medication review. (ECF No. 15-8 at 249). She reported rare wheezing and coughing, and that she rarely used an inhaler. (Id.). She reported her fibromyalgia pain was stable, and that she was experiencing bloating and constipation. (ECF No. 15-8 at 249-50). Graham stated she was having migraines twice per month, with no associated symptoms. (ECF No. 15-8 at 250). Graham reported smoking every day, and occasional alcohol use. (Id.). Upon examination her spine was normal without deformity or tenderness, and with normal range of motion. There was no tenderness to palpation. (ECF No. 15-8 at 251).

An upper GI endoscopy performed August 18, 2017, revealed Graham's esophagus was normal, with some non-bleeding erosive gastropathy. (ECF No. 15-8 at 210-11). Graham was advised to avoid non-steroidal anti-inflammatory drugs. (ECF No. 15-8 at 211). A colonoscopy performed August 18, 2017, revealed external hemorrhoids, non-bleeding internal hemorrhoids, a normal ileum, and “[t]he entire examined colon” was “normal.” (ECF No. 15-8 at 212). A pathology report dated August 21, 2017, was negative for duodenal inflammatory changes and celiac disease, positive for diffuse moderate chronic inflammation of the stomach and the presence of organisms compatible with H. pylori, and negative for bowel inflammatory changes. (ECF No. 15-8 at 208). When seen at Thunderbird Endoscopy Center on August 28, 2017, Graham reported being a “[c]urrent every day smoker.” (ECF No. 15-8 at 214-15).

The record does not appear to include a follow-up consultation with regard, specifically, to Graham's colonoscopy and endoscopy results.

Graham was seen by Dr. Bailes on September 26, 2017, for fibromyalgia and migraines. (ECF No. 15-8 at 245). She reported her fibromyalgia pain as “ache, stabbing, stiff,” with a severity of 6 out of 10. (Id.). Graham reported the pain was constant and aggravated by “too much activity.” (Id.). Graham stated her migraines were chronic, sudden, moderate to severe, and occurred “a few times a week” and lasted for a day or two days. (Id.). Graham reported being a current smoker, with occasional alcohol use. (ECF No. 15-8 at 246). Graham was advised to quit smoking, and she was referred for a rheumatology consultation. (ECF No. 15-8 at 248).

Graham was seen at AARA on January 4, 2018, complaining of psoriatic arthritis. The notes state:

... She has dx of PSA. She was started on Arava at her last office visit [May 4, 2017] but admit she hasn't started it yet. She was in hospital and was given steroids recently for bronchitis. She has pain in her hands back hip and knee. She has morning stiffness of a few minutes. She has some mild psoriasis on her legs and occasionally on her scalp/forehead.

(ECF No. 15-9 at 47) (emphasis added). Graham was started on tramadol as needed for her fibromyalgia pain, and continued on metaxalone, used to treat muscle spasms and pain. (ECF No. 15-9 at 49). Graham was also started on sulfasalazine for psoriatic arthritis. (Id.).

Graham was seen by Dr. Bailes on January 26, 2018, regarding her migraine headaches. (ECF No. 15-8 at 242). She reported daily migraines, lasting “hours days.” (Id.). Graham reported the migraines were triggered by weather, and produced light sensitivity, phonophobia, vomiting, and nausea. (Id.). Graham reported being a former smoker, allowed she did not exercise, and stated she consumed an average diet. (ECF No. 15-8 at 243). Graham was “well nourished in no distress.” (Id.). The assessment was transformed migraine without aura. (Id.). Dr. Bailes recommended daily exercise, dietary changes, and weight modification. (ECF No. 15-8 at 244). Graham was prescribed Topiramate, and referred for a rheumatology work-up. (ECF No. 15-8 at 244).

When seen at AARA on March 6, 2018, Graham was encouraged to resume taking Arava, and Dr. Jajoo noted: “She would really benefit from a biologic but unfortunately co-pays are very expensive.⁹ I switched her to regular tramadol. Side effects and risks were discussed. I encouraged her to watch out for any signs of infection and then only hold her Arava at that point in time.” (ECF No. 15-9 at 53).

9 Medications used to treat psoriatic arthritis include non-steroidal anti-inflammatory drugs (“NSAIDS”); “conventional disease-modifying antirheumatic drugs (DMARDs),” such as methotrexate (Trexall, Otrexup); leflunomide (Arava) and sulfasalazine (Azulfidine); biologic agents., i.e., biologic response modifiers, such as adalimumab (Humira), certolizumab (Cimzia), etanercept (Enbrel), golimumab (Simponi), infliximab (Remicade), ustekinumab (Stelara), secukinumab (Cosentyx), ixekizumab (Taltz), guselkumab (Tremfya) and abatacept (Orencia); and newer medications such as Apremilast (Otezla)

Graham was seen by Dr. Bailes on March 12, 2018, for a follow-up regarding her complaint of migraine headaches. (ECF No. 15-8 at 239). She reported experiencing migraines twice a week, lasting eight hours to two days. (Id.). Graham reported gradual onset, and that the migraines were triggered by weather and relieved by medication. (Id.). Graham reported accompanying nausea, vomiting, photophobia, phonophobia, and confusion. (Id.). She reported she had previously been deemed disabled in 2005 due to fibromyalgia, psoriatic arthritis, and migraines. (ECF No. 15-8 at 238).¹⁰ Dr. Bailes increased the dosage of Topamax. (ECF No. 15-8 at 240). Graham was instructed to keep a headache diary. (Id.). There is no indication in the record on appeal that Graham followed Dr. Bailes' instructions to keep a headache diary.

10 Graham did not assert disabling migraines as a basis for disability in 2005 or in 2013.

On June 1, 2018, Graham was seen by physician's assistant (“PA”) Ryan at AARA. (ECF No. 15-9 at 4). PA Ryan noted: “‘Psoriatic Arthritis' diagnosed by another Rheum[atologist] with good response to Remicade but cannot afford the copay and doesn't qualify for J and J grant, [Treatments]: Humira without relief, MTS (high [liver function tests]), [Sulfasalazine, used to treat digestive issues and rheumatoid arthritis] (GI upset).” (Id.). The notes state that, following Graham's “last [office visit], she started on Arava [leflunomide]. ... hasn't seen much improvement in her symptoms. She continues to have [] arthralgias, joint swelling, prolonged stiffness, and [psoriasis]. Fibromyalgia is stable.” (Id.). Graham reported fatigue, diarrhea, tingling, depression, and joint and muscle pain, and denied extremity weakness, headaches, and anxiety. (ECF No. 15-9 at 5). Upon examination her spine was normal, and her neck, heart rate, pulse, and gait were normal. (ECF No. 15-9 at 6). PA Ryan observed Graham had psoriasis on the scalp and exterior surfaces of arms and legs. (Id.). PA Ryan noted good alignment of the cervical, thoracic, and lumbar spine without tenderness. (Id.). There was no tenderness or limitation to range of motion in the shoulders, ribs, or pelvis. (Id.). With regard to neurological symptoms, there was normal cognition, and normal gait and balance. (Id.). Graham displayed appropriate mood and affect, good insight, and good judgment. (Id.).

On examination of Graham's joints, PA Ryan noted “Total Tender Joins: 34,” “Total Swollen Joints: 12.” (Id.). PA Ryan noted tenderness in the left elbow, tenderness and swelling in the right and left wrist, and in “[a]ll MCP joints.” (Id.). PA Ryan also noted all “MCP [knuckle] joints were positive for tenderness and swell[ing], and all IP [interphalangeal, i.e., finger] joints were positive for joint tenderness.” (Id.). PA Ryan noted decreased range of motion in Graham's right hip, tenderness in her left hip, and mild tenderness in both knees. (ECF No. 15-9 at 7). All joints in Graham's feet were tender. (Id.). The assessment was arthropathic psoriasis, fibromyalgia, and lumbar region spondylosis without myelopathy or radiculopathy. (ECF No. 15-9 at 8). PA Ryan noted

... active psoriatic arthritis and ongoing psoriasis. Minimal if any response to Arava. While giving it more time may help some, I do not think its going to bring her to remission. ... It appears that since her FM is stable, she may qualify for [a] PsA [] study! This would be great! If not, we will try running her information ... to see if she'd qualify for [a] free drug program. For now, continue Arava.

(ECF No. 15-9 at 9).

A consultative psychiatric examination was conducted on July 2, 2018. (ECF No. 15-9 at 67). Graham reported her medications as Zofran, Duloxetine, Excedrin, Proair [an inhaler], leflunomide, topiramate (Topamax), amitriptyline (a tricyclic antidepressant), tramadol, gabapentin, montelukast [Singulair], lamodial (most likely lomotil), metaxilol (most likely metaxalone). (Id.). The psychiatrist, Dr. McGady, performed a clinical interview and a Psychiatric Exam with Mental Status, including a mini-mental status examination (“MMSE”). (Id.). Dr. McGady also considered a psychological evaluation from 2013, a continuing disability report, and a third-party function report dated May 21, 2018. (ECF No. 15-9 at 67-68). Graham told Dr. McGady she was:

...seeking disability benefits due to “fibromyalgia, arthritis, migraines, bipolar, asthma, pain.” Ms. Graham reported experiencing chronic physical pain constantly throughout the day. She additionally endorsed experiencing low motivation to engage in her activities of daily living as well as a loss of interest in activities she previously found pleasurable. She reported experiencing occasional suicidal ideations as well as low self-esteem. Furthermore, she endorsed experiencing frequent bouts of death and dying as well as a change in her appetite when feeling down. She reported that her current emotional symptoms began in adolescence and have continued up to the present time. Ms. Graham additionally reported that she experiences mood fluctuations depending greatly on her pain levels and reported that she experiences a general sense of hopelessness regarding the treatment of her physical health conditions. Notably, she denied experiencing any decreased need for sleep... any experience or grandiosity or increases in her self-esteem or any extended engagement in activity she finds pleasurable. .

Ms. Graham reported having been diagnosed with fibromyalgia and arthritis at age 15 and that she has experienced chronic physical pain since that time. She reported that she began experiencing emotional symptoms beginning in early adolescence and that she has experienced a general sense of “depression” and chronic physical pain since early adolescence. She denied having ever been hospitalized due to psychiatric reasons. She did endorse experiencing occasional suicidal ideations; however, she reported that these ideations are typically fleeting and passive in nature. . She did endorse participating in mental health counseling between the ages of 11 and 16 with the focus of treatment being “depression.” Ms. Graham additionally endorsed currently being prescribed psychotropic medication by her primary care physician and estimated that she is been taking it for approximately 1.5 months. ..

(ECF No. 15-9 at 68) (emphasis added).

Ms. Graham reported that she was driven to the appointment today by her husband. She denied having a driver's license and reported that she has never acquired one. ... Ms. Graham reported that the time she begins her day varies greatly depending on pain levels [] the previous evening. She estimated that she can [start] her day as early as 7:30 AM and as late as 1:00 PM. Ms. Graham endorsed experiencing difficulties sleeping and identified physical pain as the primary limitation preventing her from doing so. She estimated that she receives 2 to 7 hours of sleep each night and denied napping at all during day. Ms. Graham reported showering/bathing once per week and identified physical pain as the primary limitation preventing her from doing so. She reported requiring no assistance in performing tasks related to her personal hygiene. Ms. Graham reported that she prepares her own meals, provided they are simple and do not require a great deal of time to do so. Ms. Graham reported that she is able to use the internet and phone and does so as needed. . Regarding household chores, Ms. Graham reported that she is able to accomplish most household chores; however, she reported experiencing difficulties with labor intensive chores due to physical pain. Ms. Graham endorsed experiencing difficulties with running errands and shopping due to physical pain.

(ECF No. 15-9 at 68-69) (emphasis added).

Ms. Graham described her employment history as stable and reported . her longest and most recent period of employment occurred from age 17 to age 23. She reported that she worked for Walgreens and that she discontinued working for Walgreens due to physical pain. . Ms. Graham reported that she stopped working and has not returned to work due to physical pain. .

(ECF No. 15-9 at 69).

Ms. Graham reported . she is residing with her husband, son, brother, nieces, nephews, and parents. . she typically engages in spending time with the children [and] watching TV as leisure activities. Ms. Graham reported little-to-no difficulty leaving her home and estimated that she does so approximately 1-2 times per day, seven days per week.

(ECF No. 15-9 69-70) (emphasis added).

Ms. Graham endorsed a history of substance use and reported first using synthetic marijuana in 2011 and estimated her date of last use to be 2012. Ms. Graham reported that she typically [smoked] 1 to 2 joints per day during the period she reports using. Ms. Graham denied any symptoms

related to or of having ever participated in substance use treatment related to her use of synthetic marijuana.

(ECF No. 15-9 at 70).

Ms. Graham .. conducted herself appropriately in the lobby while waiting for her appointment to begin. .. Her grooming and hygiene were good and her attire was appropriate . She appeared to display typical pain behaviors including grimacing, groaning, and muscle stiffness. Her attention and concentration were objectively within normal limits. There was no indication of hyperactivity. Her mood was “ok” and affect was dysphoric. Her speech was organized with a normal rate and tone. Her thinking was logical, goal-directed and linear. She did not appear to be responding to internal stimuli and was not observed to be tearful, anxious, confused, irritable or distressed. Her insight and judged appeared to be within typical[] limits. Her comprehension was good, no expressive or receptive language difficulties were objectively observed. Her memory appeared to be good, both short- and long-term. She appeared to function in the average range of intelligence based primarily on her use of vocabulary, comprehension and level of education. .

(Id.) (emphasis added). Graham scored 30 out of 30 on the MME. (ECF No. 15-9 at 71).

The diagnosis was Adjustment Disorder with Depressed Mood. (Id.). Dr. McGady opined:

Ms. Graham's mental health diagnosis is due primarily to difficulties adjusting to the deterioration of her physical health condition. Her emotional symptoms are likely chronic in nature and are expected to persist through the duration of her physical health condition. She endorsed currently taking psychotropic medications and endorsed experiencing little impairment in her daily functioning related to psychological distress. Her primary concern and reason for not working at the current time is chronic physical pain.

(ECF No. 15-9 at 72) (emphasis added). The consultative psychiatric examiner noted:

The psychological evaluation dated 12/09/2013 has diagnosed Ms. Graham with Bipolar I disorder; however, no rationale for the diagnosis was provided. Given that Ms. Graham denied experiencing any symptoms indicative of a manic or hypomanic episode during the current evaluation a diagnosis of bipolar one disorder will not be retained.

(ECF No. 15-9 at 73).

Graham saw Dr. Bailes on August 10, 2018, to renew her prescription for Cymbalta and “go over her asthma.” (ECF No. 15-9 at 82). Dr. Bailes noted a psychiatric evaluation revealed “no evidence for bipolar.” (Id.). Graham's “depression control status” was “improving mildly,” and she was not seeing a mental health professional. She reported difficulty falling and staying asleep, and chronic fatigue. (ECF No. 15-9 at 82). She reported suicidal ideation, hopelessness, and crying spells were “getting better.” (Id.). Graham reported she did not exercise. (ECF No. 15-9 at 83). Upon examination Graham did not have any rash, she had normal muscle tone, strength, and range of motion, and there was no instability or tenderness to palpation. (Id.). Her memory, judgment, and insight were intact and she displayed normal mood and affect. (ECF No. 15-9 at 84). The doctor continued Cymbalta and tramadol. (Id.).

Based, inter alia, on the psychiatric consultative examination by Dr. McGady, and on the opinion of reviewing state agency psychiatrist Dr. Rubin, on August 22, 2018, it was determined that as of August 1, 2018, Graham was no longer disabled, i.e., her affective disorder symptoms were no longer so severe she could not perform substantial gainful activity. The Commissioner found the limitations of her affective disorder had improved such that she could work within a schedule, sustain an ordinary routine, and complete a normal work week on a continuing basis. (ECF No. 15-4 at 9-25).

In this matter, Graham asserts as of August of 2018, she was and continues to be disabled due to “long-standing psoriatic arthritis, irritable bowel syndrome, and bipolar disorder, which caused chronic pain and the inability to sustain activities.” (ECF No. 20 at 24).

Graham saw Dr. Bailes for a follow-up on back pain on August 28, 2018. (ECF No. 15-9 at 79). The doctor noted: “also here because she got a denial for her disability for her chronic back pain and mental so she needs to get more imaging for her back and would like a referral to a psychiatrist.” (Id.). Graham reported pain in her lower back, with a pain level of 7 and on occasion “close to 10/10.” Id. She reported the pain was constant, stabbing, and burning, with muscle spasms. She stated a recent onset of numbness and tingling in both hands and feet. (ECF No. 15-9 at 80). At that time Graham weighed 262 pounds. (ECF No. 15-9 at 79). Dr. Bailes observed Graham had reduced range of motion in both her back and neck, with paravertebral muscle tenderness in both areas. (ECF No. 15-9 at 81). Dr. Bailes noted no rash or lesions on Graham's skin. (ECF No. 15-9 at 80). The doctor noted diagnoses of psoriatic arthritis, fibromyalgia, spinal stenosis of the lumbar region, IBS (which was a “little better”), and bipolar disorder (“referral to psy for further t and eval”). (ECF No. 15-9 at 81). The “plan” stated: “pt is still 100% disabled and will keep on tx .. referral to rheum and to psychiatrist.” (Id.).

On September 4, 2018, Graham requested reconsideration of the termination of her disability benefits. (ECF No. 15-5 at 30). She asserted the Commissioner failed to consider “many outstanding health issues ... that did not get included,” i.e., spinal stenosis and degenerative disc disease, and “bulging and herniated discs” in her lumbar spine. (Id.).

On September 20, 2018, Graham was seen at AARA; the notes indicate Graham was last seen on June 1, 2018. (ECF No. 15-9 at 88). Graham reported she was enrolled in a research study and taking Arava, which was:

Subjectively improving from the arthralgias and [psoriasis] standpoint. [Morning] stiffness has also decreased to about 20 minutes. Fibromyalgia is stable. Pt c/o ongoing lower back pain that has been present since early 20s. She has been on disability in the past, but is now having trouble getting that approved. Pt w/ hx of DDD, disc bulges, and spinal canal stenosis. Her most recent XRs were done about 5 years ago. No MRI. In the past, under the care of [pain management].

(Id.) (emphasis added).

Graham reported fatigue, diarrhea, depression, extremity weakness and numbness, tingling, and joint, neck, and muscle pain. (ECF No. 15-9 at 89). Upon examination Graham displayed “mildly reduced” range of motion and tenderness of the lumbar spine. (ECF No. 15-9 at 91). The provider noted patches of psoriasis on the scalp, arms, and legs. Graham's gait was normal, and there was no swelling or tenderness in her cervical or thoracic spine, shoulders, elbows, hands, hips, or feet. Id. The notes state: “Soft tissue discomfort noted in the posterior neck, left posterior shoulder, right posterior shoulder, right chest, left chest, upper back, low back, right knee, left knee.” Id. The assessment was “active, but improving [] psoriatic arthritis and psoriasis.” (ECF No. 15-9 at 91) (emphasis added). Graham was continued on Arava, x-rays of the lumbar spine were ordered, and tramadol was refilled, and Graham's fibromyalgia was noted as stable. (Id.).

On October 2, 2018, Graham saw Dr. Purewal, at Sahara Behavioral Health Center, for anxiety and depression. (ECF No. 15-9 at 93). Graham reported “feeling very anxious and depressed,” not sleeping well, and not eating well. (Id.). She reported “the medication is helping.” (Id.). Graham stated she had “been getting very depressed and anxious for a long time,” and “she ha[d] seen psychiatrists only for disability but does not follow through.” (Id.). Upon examination the doctor noted Graham was alert and oriented, her memory, focus, and concentration were normal, and her gait was normal. (Id.). Her behavior was observed as cooperative, anxious, and distractible. (Id.). She was sad, depressed, anxious, withdrawn, and apathetic. (ECF No. 15-9 at 94). Her thought process was logical and her memory was intact. (Id.). The assessment was major depressive disorder, recurrent, severe without psychotic features, bipolar disorder, current episode depressed, mild or moderate severity, and anxiety. (Id.). Graham was started on Seroquel (an “atypical antipsychotic medication”), continued on Cymbalta and Neurontin (gabapentin), and was advised to return in four weeks. (Id.).

Graham saw Dr. Purewal on October 30, 2018, for anxiety and depression. Her gait was normal, she was oriented, and she was able to focus and concentrate. (ECF No. 15-9 at 93). Graham's mood was sad, depressed, anxious, withdrawn, and apathetic. (ECF No. 15-9 at 94). Memory, insight, and judgment were intact. (Id.). Dr. Purewal assessed major depressive disorder, recurrent severe without psychotic features, bipolar disorder, current episode depressed, mild or moderate severity, and anxiety. (Id.). Graham was continued on Cymbalta, Neurontin, and Seroquel. (Id.).

Graham next saw Dr. Purewal on January 3, 2019. (ECF No. 15-9 at 96-97). She reported poor appetite and not eating well, although at that time her weight had increased to 272 pounds. (ECF No. 15-9 at 96). Her gait was normal, she was oriented and able to focus and concentrate, her affect was sad, her thought process was logical, and her memory and judgment were intact. (Id.). The doctor continued the assessment of bipolar disorder, current episode depressed, mild or moderate severity, and anxiety. (Id.). Graham was continued on Cymbalta and Neurontin, and started again on amitriptyline (Elavil). (Id.).

After this visit with Dr. Purewal on January 3, 2019, there are no other behavioral or psychiatric health treatment records in the record on appeal. Both before and after seeing Dr. Purewal, Graham did not pursue repeated referrals for psychiatric evaluation and treatment.

Treatment notes by Dr. Will at Midwestern University Multispecialty Clinic, dated May 2, 2019, state:

Patient presents to clinic as a new patient. Patient states [] she's been disabled with chronic low back pain, and arthritis related to psoriatic arthritis. Patient is in need of new referral since she has changed insurance. Patient has diffuse psoriatic arthritis, and currently takes immunomodulating [] medication. ...

Patient also takes controlled substance, tramadol for her chronic pain. I did offer her a pain management referral to continue this on a longterm basis. Patient also has bipolar disorder, which is currently under the care of psychiatry. Patient feels well and does need some courtesy refills on her medication and referral to reestablish with her current rheumatologist and pain management physician. We also discussed the need for a physical examination with routine labs.

(ECF No. 15-9 at 171) (emphasis added). Upon examination there was no swelling of any extremities, and Graham's gait and station were normal. (ECF No. 15-9 at 172-73).

On May 6, 2019, Graham was seen by PA Neal of Medico Consultative Examiners, at the behest of the state disability agency. (ECF No. 15-9 at 116). PA Neal noted allegations of fibromyalgia, psoriatic arthritis, migraines, bipolar disorder and depression, asthma, spinal stenosis, and herniated and bulging disk. (Id.). Graham reported she had quit smoking in November of 2017, after smoking one pack per day for 15 years. (ECF No. 15-9 at 118). PA Neal's notes state:

The claimant is a 36-year-old female with the first allegation of depression. She states she has been questionably diagnosed with bipolar; however, she still is working through her diagnosis with her mental health professional. Today, she denies any suicidal ideation or homicidal ideation. We will defer to Social Security Psychology evaluation for further evaluation of her depression symptoms.

• She reports a history of fibromyalgia since 2006. She states daily she has sensitivity to touch, easily fatigued with even low impact activities. She reports a constant low energy and whole body soreness. She states cold weather worsens her symptoms. She states it is difficult to know which condition is causing her symptoms and the symptoms overlap with her other conditions of psoriatic arthritis and chronic back problem.

• She does report a history of IBS. She states she has been battling this condition for many years as well, had many tests and been diagnosed with IBS with questionably inflammatory disease as well. She reports she has diarrhea daily anywhere from 2 to 10 episodes a day. She states it is worse with stress.

• She reports a history of psoriatic arthritis, diagnosed in 2006. She states at that time she was having joint pains and had an elevated ANA and high inflammatory markers. The psoriatic arthritis was diagnosed after she started developing daily rashes over her joints. She states she is currently in a research study and on a double immunosuppressant, but she is unsure of the names of the medications she is on specifically. She reports a constant achiness and burning in all of her joints with associated warmth and sharp pain with movement. She reports it is greatest in her hands and wrists and also her right hip. She also reports intermittent swelling of her joints and states that her left thigh is constantly swollen despite weight loss. [At this time Graham weighed 265 pounds (ECF No. 15-9 at 118)]

(ECF No. 15-9 at 116) (emphasis added).

She reports a history of migraines. She gets two a week. She states this has been decreasing in frequency since starting topiramate. She states her headaches start behind her eyes with associated nausea. They will radiate into the frontal or the occiput, it varies. She states she gets these headaches 2 times a week, lasting anywhere from 2 hours to 2 days. She states on average it lasts one day. She states she has tried many medications with very little relief. She does have associated photophobia. She reports rest and Excedrin Migraine do give mild relief.

• She reports a history of asthma. She is on Xyzal, montelukast and ProAir. She states currently her asthma is well controlled especially since smoking cessation. She reports using her ProAir approximately once a week or every other week.

• She reports she has had back pain x16 years. She states it came on gradually and worsened to severe pain with prolonged standing, walking and moving, which led to her diagnosis of spinal stenosis, degenerative disk disease, herniated disk and bulging disk. She states currently she does have constant low back pain, tailbone pain and hip pain, worse on the right. She states the pain is constant and sharp. Activity increases her pain with associated nausea. She states any prolonged walking or having to go up and down stairs will severely worsen her pain. She also reports with prolonged standing, she has pain that radiates into her legs, greatest on the right leg more than the left with associated intermittent weakness. She states she has been seeing the chiropractor and states the treatment has helped at times.

(ECF No. 15-9 at 117) (emphasis added).¹¹

11 There are no treatment notes from a chiropractor in the record on appeal.

The claimant denies significant impact on activities of daily living.

• The claimant is able to complete self-care activities including meals, hygiene, and light housework.

• The claimant is not confined to bed, and gets adequate sleep.

• The claimant does not drive a vehicle. She did not drive herself today. She does not have an active driver's license due to previously being on heavy pain medications, so she has not continued to drive since changing her medications.

• She reports she lives with her husband, son, in-laws, brother-inlaw, and her brother-in-law's family, who helps her with most of her home activities and chores.

• She does daily take care of her son, home-school her niece and watch her nieces during the day. ...

(ECF No. 15-9 at 118) (emphasis added).

The PA reported Graham was not in acute distress, and she could “sit in the chair without discomfort for the duration of the exam. ” (ECF No. 15-9 at 119). PA Neal observed Graham could stand and sit from a standing position without difficulty, but “she [did] appear generally uncomfortable and in pain when moving.” (Id.). The notes state:

The claimant can stand, walk to the examination table, and get onto the examination table without assistance and without difficulty; however, she moves very slowly and methodically and does appear uncomfortable. ... gait is normal. The claimant can stoop without difficulty. The claimant can lift each foot off the ground and stand without assistance. She demonstrated appropriate balance including walking on heels, toes and tandem walking.

(ECF No. 15-9 at 119).

The notes also state:

The claimant's extremity muscle bulk is normal without atrophy noted in the upper extremities.

• The claimant's extremity muscle bulk is normal; however, there is atrophy of the right thigh and right lower leg compared to the left.

• Strength 5/5 in the bilateral upper extremities.

• The claimant's grip strength is normal.

• Strength 5/5 in the bilateral lower extremities.

(ECF No. 15-9 at 119) (emphasis added).

Graham's fine motor skills were evaluated, and the examiner found she was able to pick up small coins with both hands without difficulty, screw a nut onto a bolt with both hands without difficulty, and Graham was able to write her name and other specific information with “no appendicular dysmetria noted in the dominant hand” and “without difficulty.” (ECF No. 15-9 at 120). Graham's range of motion was within normal limits on her cervical spine, shoulders, elbow, wrist, hand, lumbar spine, hips, knees, and ankles, with “subjective complaints of pain” on her shoulders, wrist, and lumbar spine. (Id.). There was no pain with palpation of Graham's back, no pain noted with a straight leg-lift less than 60 degrees, no shooting pain down the leg with hip flexion and knee extension, but Graham became “very uncomfortable with moving from a seated position to a supine position. She reports increased pain in her hips and low back with straight leg lift.” (Id.). “Approximately 4 kg of force was applied to the tender points and tenderness was elicited at the 18/18 of the tender points.” (Id.).

The diagnoses were:

1. Depression versus bipolar disorder. We will defer to Social Security Psychology for further evaluation. 2. Fibromyalgia with positive 18/18 tender points. 3. IBS, by history. 4. Psoriatic arthritis with diffuse joint pain with movement on exam. 5. Migraines. By History 6. Asthma, well controlled. 7. Spinal stenosis. 8. Degenerative disk disease. 9. Herniated and bulging disk with general discomfort on exam and subjective complaints of pain in the back during physical exam.

(ECF No. 15-9 at 121). The specific assessed limitations were that Graham could frequently carry 10 pounds, but only occasionally carry 20 pounds, and she could stand and/or walk for 6-8 hours in an 8 hour day. There were no assessed limitations in sitting, seeing, hearing, and speaking, and Graham could only occasionally climb, but she could frequently kneel, crouch, reach, handle, finger, and feel. (ECF No. 15-9 at 122).

On May 24, 2019, upon reconsideration of the discontinuation of benefits, the Commissioner affirmed the decision that Graham was no longer disabled. (ECF No. 15-4 at 25).

Graham was seen again at Midwestern University Multispecialty Clinic on May 30, 2019. She reported no gastrointestinal symptoms, but reported joint swelling and joint stiffness. (ECF No. 15-9 at 174). She reported no psychiatric symptoms. (Id.). Graham reported she was a former tobacco user. (ECF No. 15-9 at 175). Gabapentin was renewed for chronic pain. (ECF No. 15-9 at 176).

At a May 30, 2019, appointment at AARA, Graham reported Arava had helped improve her morning stiffness from psoriatic arthritis but she was still not sleeping well, and her fibromyalgia pain had increased. (ECF No. 15-9 at 232). Graham reported being a “[c]urrent some day smoker.” (ECF No. 15-9 at 233). The notes state:

She was last seen on 9/20/18. Currently enrolled in research + taking Arava. She's been out of Arava [] 1 month. She is receiving her last injection through research today. She is curious as to what will be next for her. Subjectively improved from the arthritic standpoint and [psoriatic arthritis] standpoint since entering the research trial. [Morning] stiffness has also decreased to about 30-60 minutes. She is not sleeping very well. Fibromyalgia is slightly more active currently than it has been in the past. Pt continues c/o ongoing lower back pain that has been present since early 20s. .. She had gotten orders from PCP to update [x-rays] and MRI of the spine, but due to insurance disturbance, this did not happen. In the past, under the care of [pain management]. Today, she's having a lot of pain in the Rt forearm. She's been cooking more than normal and she thinks this could be the “over use/ repetitive” movement, I'm asking about. She does have a wrist splint at home, but doesn't wear it unless her wrist is bothering her.

(ECF No. 15-9 at 232) (emphasis added). The treatment notes state:

Most of her spinal pain is coming from DDD [degenerative disc disease]. Her [fibromyalgia] is also flared which I suspect is due to her recently [decreasing] Elavil which has [led] to increases in insomnia/fatigue. Asked pt to discuss w/ PCP either resuming Elavil at a lower dose or changing her to something like Ambien. Refilled Skelaxin [metaxalone] and Tramadol for the pt today. Suggested pt try wearing wrist splint nightly and forearm band during the day to help provide relief from epicondylar [sometimes known as “tennis elbow”] pain.

(ECF No. 15-9 at 236).

On examination PA Ryan observed Graham had lumbar spine tenderness and mildly reduced range of motion, and scant psoriasis patches on the scalp, arms, and legs, twelve out of eighteen fibromyalgia tender points, five tender joints, and one swollen joint. (ECF No. 15-9 at 234-35). Graham's gait was normal and her cervical spine was aligned without scoliosis, tenderness, or deformity. There was no tenderness or limited range of motion of the thoracic spine, the right shoulder, left elbow, right hand, or hips. (Id.). There was soft tissue discomfort in the posterior neck, left shoulder, upper back, low back, and both knees. (ECF No. 15-9 at 235). PA Ryan opined:

Patient with active, but improving psoriatic arthritis and psoriasis. Responsive to research therapy drug. Unfortunately she's nearing the end of her trial thus her receiving study drug will soon be coming to an end. Will try and get her set up to start on Stelara since it is an IL-23, same as her study drug. ...

(ECF No. 15-9 at 236) (emphasis added).

Graham was seen at Midwestern University Multispecialty Clinic on June 21, 2019, complaining of hypothyroidism. (ECF No. 16-1 at 48). The notes state “chronic pain with psoriatic arthritis. Patient is under care of rheumatology and stable.” (Id.). Graham was started on thyroid medication. (Id.).

Graham was seen at AARA on July 2, 2019. (ECF No. 15-9 at 225). The treatment notes state:

We see her for psoriatic arthritis. She is under the care of a psychiatrist for her depression. She is now here to reestablish care to continue some form

of treatment for her psoriatic arthritis before it flares. She would like a selfinjection as she does not have time to come in for infusions. She remains on tramadol, Arava and metaxalone for pain control. She has minimal psoriasis today.

(Id.) (emphasis added). The notes state: “Smoking status: Current some day smoker.” (ECF No. 15-9 at 226). Upon examination Graham's range of motion was mildly reduced in the lumbar spine, and there were “scant patches” of psoriasis on the scalp and exterior arms and legs. (ECF No. 15-9 at 227-28). Cognition and memory were normal, balance and gait were normal, Graham was oriented and displayed appropriate mood, affect, insight, and judgment. (ECF No. 15-9 at 228). There was joint tenderness in the left shoulder, right elbow, left wrist, and left hand, and decreased range of motion in the hips, with mild tenderness in the knees. (Id.). Dr. Jajoo opined:

Right now, she is not having too much of a flare. Her skin is under good control. However, I think we need to get her on some treatment soon before she starts flaring . . .. I will give her information on Stelara and we will see her back in follow up in three months. We will proceed from there.

(ECF No. 15-9 at 231).

On July 9, 2019, Graham saw Dr. Syed at Valley Anesthesiology & Pain Consultants, complaining of radiating low back pain and hand and foot pain. (ECF No. 15-9 at 139). She reported her pain as aching, stabbing, and moderate, with a severe component of numbness and tingling. (Id.). The pain was worse at night and in the morning, and she did not report weakness or numbness. (Id.). Graham reported her pain level as 5 to 9, stating it was aggravated by “[b]eing too active, bad weather, stress, no sleep.” (Id.). She reported no benefit from physical therapy, some benefit from chiropractic care, and benefit from acupuncture. (Id.). Graham denied weakness, loss of appetite, and fatigue. (ECF No. 15-9 at 141). She denied diarrhea and nausea. (Id.). At that time her medications were metaxalone, montelukast, gabapentin, tramadol, topiramate, leflunomide, diphenoxylate (for diarrhea), and Zofran. (ECF No. 15-9 at 139). She denied migraines (ECF No. 16-1 at 141). The notes state Graham had been:

... evaluated by another pain physician however it is unclear why she stopped seeing this pain physician. Patient was evaluated by rheumatology

who had given her prescriptions for tramadol[]. We discussed at length that narcotics are not an appropriate long-term strategy to address her pain. I suggested that we would try alternative measures to address her pain including interventions as well as physical therapy.

(ECF No. 15-9 at 143). Graham was referred for a lumbar x-ray and physical therapy. Id. She was advised to seek counseling with regard to her weight, and given “encouragement to exercise.” (Id.).

Upon examination Graham displayed a normal gait. (ECF No. 15-9 at 141). Graham had moderate tenderness to palpation over the facets and paraspinals with paraspinal muscle spasm, decreased lumbar range of motion, moderate tenderness to palpation of the cervical spine, and decreased cervical range of motion. (ECF No. 15-9 at 142). Her muscle strength was 5/5, including her upper extremities and lower extremities. (Id.). The assessment was myalgia, lumbar pain, and psoriatic arthritis. (Id.).

Graham was seen by PA Brooker at Valley Anesthesiology & Pain Consultants, on August 9, 2019:

... Patient presents today for reevaluation of her low back pain, leg pain, diffuse joint pain and fibromyalgia. Report for her lumbar spine x-ray is not yet available. She has physical therapy scheduled but has not yet attended. She gets relief with tramadol per her report. Her prior pain doctor had her on morphine but she does not wish to restart this treatment. She rates pain 7 out of 10. She states it is somewhat worse since the last visit. She describes her pain as constant, sharp, aching, throbbing, tingling, shooting. Pain is worse with standing, sitting and walking and improves with medication. Patient states she was on a study medication for her psoriatic arthritis and this was stopped and now her pain is worsening. She is starting Stelara per rheum and is hoping this will be as effective.

(ECF No. 16-1 at 167) (emphasis added). At that time Graham's weight was 249 pounds. (Id.). Graham reported “no benefit” from physical therapy. (ECF No. 16-1 at 168).¹² Her gait was not antalgic, and she could stand on her tiptoes and heels. (Id.). Palpation was moderate over her lumbar spine, with decreased lumbar and cervical flexion and extension. (ECF No. 16-1 at 169). Lumbar rotation was decreased, and facet loading was positive. (Id.). Motor strength was normal (5/5) with regard to all extremities, and all reflexes were normal. (Id.). The assessment was myalgia, lumbar pain, psoriatic arthritis, and lumbar radicular pain. The notes state:

... Biggest issue is all over pain but also deals with joint pain and low back pain radiating down her legs. She is going to be starting Stelara today per rheum for psoriatic arthritis. We do not have any imaging today to review with regard to her low back. The report is not available to me. She likely will need [MRI] pending xrays and physical therapy.

(ECF No. 16-1 at 169

12 There is no indication in the record on appeal that Graham had participated in physical therapy prior to this time.

Graham was seen at Back in Action Physical Therapy on September 4, 2019. (ECF No. 15-9 at 149). She rated her low back and spinal pain as at best a 5/10 and at worst as a 9/10, and denied disturbed sleep. (ECF No. 15-9 at 150). The therapist noted she responded well to the initial treatment. (ECF No. 15-9 at 152). A discharge note dated October 18, 2019, states Graham's “insurance is now out of network. The patient has decided to move their treatment to an in-network provider.” (ECF No. 15-9 at 155).

There is no indication in the record on appeal that Graham continued physical therapy after September 4, 2019. The Commissioner twice requested treatment notes from 360 Physical Therapy and Sports Medicine. (ECF No. 15-9 at 306). No records from 360 Physical Therapy and Sports Medicine appear in the record.

Graham was seen by Dr. Caldron at AARA on October 1, 2019. Treatment notes state:

Subsequent to Dr. Jajoo's urgent medical retirement on August 2, 2019, I have been asked by AARA to assume the rheumatologic management of her patients ...

Follows up after 3 months for working diagnosis of PsA. Here with husband. Past response to Remicade but coverage lapsed. Non response to Humira .. Did well with study of guselkumab [Otezla]. Current on Arava and Stelara. She has minimal psoriasis today.

Comorbidity of DDD, disc bulges, and spinal canal stenosis. Sees psychiatrist for depression. She remains on tramadol and metaxalone for pain control.

(ECF No. 15-9 at 220) (emphasis added). Graham reported fatigue, diarrhea, extremity weakness, headache, numbness and tingling in her extremities, depression, joint pain, myalgia, and neck stiffness. (ECF No. 15-9 at 222).

On October 17, 2019, Graham saw PA Stratman at Valley Anesthesiology & Pain Consultants, complaining of pain in her lower back, right hip, both hands, and below her shoulder blades. (ECF No. 15-9 at 177). PA Stratman observed Graham's gait was normal. (ECF No. 15-9 at 180). Graham had moderate tenderness to palpation and decreased range of motion at the lumbar and cervical spines as well as positive facet loading. (ECF No. 15-9 at 177-80). PA Stratman noted 5/5 muscle strength in all extremities. (ECF No. 15-9 at 180). The notes state:

Patient has been losing weight but notes no benefit in her pain. She was trying PT, but they are not in network. She asks me for new referral to PT. Bigger issue is all over pain but also deals with joint pain and low back pain radiating down her leg. ... We will consider lumbar [MRI] pending her relief with PT.

(ECF No. 15-9 at 180).

Graham rated her pain as 6/10, and “worse than last visit.” (ECF No. 16-1 at 64). She reported she could manage most of her personal care, walk for a quarter mile, lift light to medium weight, sit for an hour, and stand for a half hour. (ECF No. 16-1 at 66). At that time her weight was 242 pounds. (Id.). Muscle strength was normal in all extremities. (ECF No. 16-1 at 67). Graham was referred to physical therapy. (ECF No. 16-1 at 68).

Graham was seen at Valley Anesthesiology & Pain Consultants on November 20, 2019. The notes state:

... She rates her pain as 6 out of 10. She states her pain has 6-8 out of 10 on average. ... She states it is constant and worse with sitting, standing, twisting, walking. Pain is better with rest and sitting and improves with lying down and changing positions constantly. Patient reports 30-50% benefit from tramadol.

Pt has been losing weight but notes no benefit in her pain. She started aquatic therapy. Her MRI was recently [approved] and she has not scheduled yet. ...

(ECF No. 15-9 at 282, 285).

Graham was seen at AARA on December 6, 2019. The notes state: “Follows up after 2 months for working diagnosis of PsA. . Did well with study of guselkumab. Current on Arava and Stelara. She has minimal psoriasis today. . Sees psychiatrist for depression. She remains on tramadol and metaxalone . 8-20-19 Research labs CBC, CMP, CRP essentially normal.” (ECF No. 15-9 at 214) (emphasis added). Tramadol was discontinued. (ECF No. 15-9 at 218).

An MRI of Graham's lumbar spine performed January 8, 2020, showed normal lumbar alignment, with moderate changes adjacent to the L4-5 disc, moderate degenerative disc disease at ¶ 4-5, and mild degenerative disc disease at ¶ 1-2 and L3-4. (ECF No. 16-1 at 19-20). There was also a moderate-sized disc protrusion at ¶ 3-4, with mild left lateral recess narrowing. (Id.). The interpretation states: “1. Moderate-sized broad-based right paramedian disc protrusion at ¶ 3-4. Correlate for right L4 radiculopathy. 2. Degenerative change elsewhere the lumbar spine is superimposed upon a congenitally narrowed central canal from L3 through LS as detailed above.” (Id.).

Graham was seen by PA Brooker at Valley Anesthesiology & Pain Consultants on February 5, 2020:

Courtney returns for follow-up regarding chronic back pain, hip pain, neck pain, arthritis and fibromyalgia pain. She had a lumbar MRI and is here to review. The patient reports her pain is 6 out of 10 today. She states it is constant, sharp, aching, throbbing, burning, shooting. Pain is worse with standing, twisting and walking and improves with medication and moving around. The patient last took pain medication today which provides 10-30% relief. ..

(ECF No. 15-9 at 267). The notes also state: “Physical therapy: No benefit.” (Id.).

PA Brooker's notes also state:

Lumbar MRI was reviewed with pt today, she has moderate right paracentral disc protrusion at ¶ 3-L4 as well as stenosis worse on the right

at L4-5. She has pain in both L4 and L5 distribution. Worst in LS distribution today. Discussed lumbar epidural injections however the patient has trialed these many times in the past without significant lasting improvement. For this reason, I recommend she see spine surgery to discuss options. Pt has been losing weight but notes no benefit in her pain. She continues aquatic therapy and would also consider resuming therapy for her radicular pain when she meets her deductible in several months .. Pt started Butrans and has had benefit. Discussed continue current tx for now. . advise she f/u pep for referral to spine surgery possibly Dr. Landsman. - consider more physical therapy once she meets her deductible.

(ECF No. 15-9 at 270) (emphasis added).

Graham was seen at Midwestern University Multispecialty Clinic on March 5, 2020, and admitted she was not always taking her medication. (ECF No. 16-1 at 37). The notes indicate Graham was seeing a rheumatologist “for immunosuppression,” i.e., leflunomide, and she was taking topiramate for migraine headaches. (Id.). Graham reported the topiramate was causing “some numbness and tingling of the fingers. She states she does suffer from neuropathy and states that this adds to the problem.” (Id.). She also reported she was trying “to walk at least 6000 steps a day but sometimes does not make that goal.” (Id.). At that time Graham's weight was down to 234 pounds. (ECF No. 16-1 at 39). Graham's gait was normal, and her judgment, insight, and mood and affect were normal. (ECF No. 16-1 at 39). A TSH test (for thyroid level) was ordered, and the physician “discussed the importance of exercise” and emphasized aerobic exercise and strength training. (ECF No. 16-1 at 40). Graham was again started on amitriptyline. (ECF No. 16-1 at 43).

Graham was seen at AARA on March 25, 2020. (ECF No. 15-9 at 209). The notes state:

The severity of the [psoriatic arthritis] is moderate. Pain scale: 8/10. The symptoms are constant. The problem has worsened. The primary symptoms reported include: pain, stiffness, swelling and Increased PsO. The following symptoms are not reported: functional limitation. Prescribed measures include: therapy (Arava / Stelara). The patient's assessment of treatment is: helping some. The locations affected since last visit are neck, low back, shoulder, hand, knee, ankle and foot. . Additional information:

Subjectively not doing as well w/Stelara as she was on the drug she was receiving through research trial. Trial ended roughly 3-4 months ago. .. Location of the [osteoarthritis] pain is lower back, mid back, neck, bilateral hip and bilateral knee. The patient describes it as stiff, crunching, achy and swollen. It occurs persistently. The problem is improving. Symptom is aggravated by walking upstairs, walking downstairs, standing, walking and overuse. Relieving factors include sitting and rest. Pertinent negatives include diarrhea, dyspnea, fatigue, fever, rash and weight loss. Additional information: PM recently changed Tramadol to Butrans Patch which has been somewhat helpful.

(ECF No. 15-9 at 209) (emphasis added). The assessment and plan include: “. Wt loss is a must.” (ECF No. 15-9 at 211).

Graham was seen by PA Brooker with Valley Anesthesiology & Pain Consultants, via telemedicine, on April 1, 2020. (ECF No. 15-9 at 262). The notes state:

... Courtney returns for follow-up regarding chronic back pain, hip pain, neck pain, arthritis and fibromyalgia pain. Patient rates pain 7 out of 10 today. She states it is 6 out of 10 on average. She describes it is interfering with her life moderately. She states the pain as constant, burning, aching, tingling and stabbing. Pain is worse with sitting, standing, twisting and walking and improves with medication and rest. Patient last took pain medication today which provides 30-50% benefit. She denies any side effects. ..

(ECF No. 15-9 at 262, 265) (emphasis added). The notes from April 1, 2020, also state:

... Pt states she started aquatic therapy and is feeling sore, advise ibuprofen. ... Pt's lumbar spine and right LE pain is unchanged. . She has pain in both L4 and L5 distribution. . Discussed lumbar epidural injections however the patient has trialed these many times in the past without significant lasting improvement. She is planning to discuss with pcp referral for spine surgery. ...

(ECF No. 15-9 at 265) (emphasis added).

Graham was seen at Midwestern University Multispecialty Clinic by video conference, on April 17, 2020. (ECF No. 16-1 at 33). The notes state:

. Patient has a history of chronic low back pain. Patient is currently under the care of pain management. Patient has been informed that she needs to see a neurosurgeon since she has advanced spinal stenosis. Patient does not report bowel or bladder loss. .

Patient denies any excessive fatigue or cold intolerance.

(Id.). Graham was referred to neurosurgery and pain management, discontinued on Topamax, and prescribed an inhaler. (ECF No. 16-1 at 35).

There are no treatment records from April 18, 2020, through November 18, 2020, in the record on appeal.

Graham sought reconsideration of the finding that her disability ceased in 2018, and a telephonic hearing with a state agency officer was conducted November 18, 2020. (ECF No. 15-5 at 43, 53-56). In a contemporary disability report Graham stated she could not work due to chronic pain, which “flares up [with] stress,” “sleep issues not able to keep a normal schedule,” and “never knows how she will feel.” (ECF No. 15-5 at 45). Graham alleged “new” impairments of “psoriatic arthritis, Hashimoto's, osteoarthritis, gut issues-inflammatory-possibly [Crone's] sometimes incontinent,” and “migraines-appt Thurs - new med & depression on med keto diet to try to calm down pain management noticed increased [mental health symptoms] - needs referral back if PCP not able to prescribe b/c worsening.” (ECF No. 15-5 at 46). Graham reported she “need[ed] pain more under control before can attempt [physical therapy].” (ECF No. 15-5 at 47). Graham stated that her depression and stress exacerbated her pain, and that she was no longer able to “tolerate others.” (ECF No. 15-5 at 49). Graham testified she did not remember to pay bills, and that she would shop once a week with her husband and shop online, and she avoided “avoid certain stores,” because she “gets splurgy-impulsive purchases.” (ECF No. 15-5 at 50).

The disability hearing testimony was summarized as follows:

Courtney Lynn Graham testified that her pain has worsened. She is taking new medications because she cannot be on heavy medication. She saw a back surgery specialist, yet is still hoping to find alternate treatment options. She used to be in a pain test group, but maxed out on pain injections and has not returned because she owes them $4,000. She is in constant pain, which flares up with stress.

She has a bad grip and is always dropping things. It is difficult to stand or walk far. She never knows if she will finish an activity she starts. There are mornings that it is a struggle to get out of bed. Sometimes she has her husband take over cooking when she feels as though she cannot continue. She does not use an assistive device, but she does lean on others

when she needs help and her husband assists her when walking and showering.

She cannot maintain a consistent schedule because she never knows how she will feel. She has issues with psoriatic arthritis, Hashimoto's, osteoarthritis, gut issues, and inflammation. She possibly has Crohn's and she occasionally has issues with incontinence. She takes migraine medication that also helps with depression. She is following the keto diet to see if it will help calm the inflammation and gut issues.

She lives with family. She homeschools her son and niece. She switches back and forth between chairs when she is assisting the children with school/zoom. She prepares snacks for the kids and administers insulin for her niece. Her husband takes over caring for the children so she can lay down.

(ECF No. 15-5 at 56).

Graham participated in a video conference with a physician at Midwestern University Multispecialty Clinic on November 19, 2020. (ECF No. 16-1 at 29). Graham complained of depression, migraine headache, chronic pain, and hypothyroidism. (Id.). She reported she was in pain management care, and taking Cymbalta for both depression and chronic pain. (Id.). Graham assed to “go back to SSRI [selective serotonin reuptake inhibitor] medication,” reporting she was “not receiving much benefit” from Cymbalta. (Id.). She reported “chronic daily pain without new radicular symptoms.” (Id.). Graham wanted “to try new medication to help with nausea associated with her migraines,” and did “not report any change in headache or focal neurologic deficits.” (Id.). She reported she was not experiencing respiratory issues. (ECF No. 16-1 at 30). Graham was discontinued on Cymbalta and started on an SSRI, and referred for a psychological consultation. (ECF No. 16-1 at 31-32). She was also given Phenergan for migraines and nausea. (ECF No. 16-1 at 32).

On December 3, 2020, the Commissioner sent a second request for medical records to Phoenix Orthopaedic Consultants. (ECF No. 15-10 at 2).¹³

13 The Commissioner sent another request for records to Phoenix Orthopaedic Consultants on January 5, 2022. (ECF No. 15-10 at 68). Graham requested records from Collision Chiropractors on April 14, 2021. (ECF No. 16-1 at 24, 57). There are no records from Collision Chiropractors in the record on appeal.

Graham was seen by Dr. Hume at Village Medical on January 8, 2021, as a new patient. (ECF No. 16 at 99). Inter alia, she was referred to rheumatology, pain management, physical therapy, and behavioral health. (ECF No. 16 at 99). At that time her weight was 247 pounds. (Id.). Her “problems” were hypothyroidism, obesity, moderate recurrent major depression, migraine headaches, psoriatic arthritis, degenerative joint disease, chronic low back pain, and fibromyalgia. (ECF No. 16 at 100). She reported no nose or sinus issues, no shortness of breath, and no rashes. (ECF No. 16 at 101). Her memory was normal and she was active and alert, oriented, and ambulating normally. (Id.).

Graham was seen by Dr. Hume on February 26, 2021. (ECF No. 16 at 93). She reported she was experiencing migraines. (Id.). At that time Graham was at 252 pounds. (Id.). She reported she was taking amitriptyline for sleep and fibromyalgia, but it was not helping with her migraines, which she was getting two to four times per week and which lasted “for hours to days.” (ECF No. 16 at 96). Graham displayed normal gait, motor strength, and muscle tone, and normal range of motion. (Id.). Graham was referred to pain management for her fibromyalgia, to rheumatology for PSA, and to psychiatry. (ECF No. 16 at 97). Graham was started on Emgality (used to prevent migraines and treat episodic cluster headaches), and referred to neurology. (ECF No. 16 at 98).

On March 26, 2021, the disability hearing officer affirmed the cessation of benefits, concluding Graham was previously found disabled “due to mental,” and was no longer disabled. (ECF No. 15-4 at 27). Prior to reaching their decision the disability hearing officer reviewed medical records from 2017 through 2019, and the medical and vocational reports underpinning the comparison point decision in 2013. (ECF No. 15-5 at 54-55). The hearing officer concluded there had been medical improvement noting, inter alia, Dr. McGady diagnosed Graham as suffering from “adjustment disorder and depressed mood rather than bipolar disorder because [Graham] denied symptoms of manic episodes and mania.” (ECF No. 15-5 at 57). The hearing officer also cited the consultative examination with PA Neal, wherein PA Neal noted Graham's physical exams are generally within normal limits, with no observations of pain, also citing PA Neal's opinion with regard to Graham's ability to perform specific work-related tasks. (ECF No. 15-5 at 57-58). The disability hearing officer concluded, inter alia, that Graham was capable of performing the jobs of coin-machine collector, silver wrapper,¹⁴and tanning salon attendant. (ECF No. 15-5 at 63). The hearing officer determined Graham was no longer disabled as of August 22, 2018, and the period of disability was terminated as of October 31, 2018. (ECF No. 15-4 at 27). Graham appealed the hearing officer's decision, and requested a hearing before an Administrative Law Judge.

14 Pursuant to the Dictionary of Occupational Titles, A “silver wrapper” is responsible for handling silverware in a hotel or restaurant setting, performing tasks such as spreading silverware (such as forks, knives, and spoons) on an absorbent cloth to remove any moisture, wrapping individual place settings in napkins or inserting them into plastic bags along with prescribed accessory condiments and sealing the bag using an electric sealer, and in some cases immersing the silverware in a cleaning solution before wrapping the silverware.

Graham was seen by Dr. Hume on April 6, 2021. (ECF No. 16 at 85). At that time Graham weighed 255 pounds. (Id.). The noted “problems” were hypothyroidism, obesity, moderate recurrent major depression, insomnia, migraine, psoriatic arthritis, degenerative joint disease, chronic low back pain, and fibromyalgia. (ECF No. 16 at 86-87). Graham was ambulating normally, and displayed normal mood and affect. (ECF No. 16 at 88). She had normal muscle strength and tone, and normal movement of all extremities; there was no rash. (Id.). It was again recommended that Graham schedule an appointment with behavioral health services. (ECF No. 16 at 89). Graham's fibromyalgia was assessed as moderate in severity. (Id.). Amitriptyline and gabapentin were continued, and Graham was referred to Valley Pain Centers. (Id.). Migraine headaches were assessed as severe and controlled, not intractable and without status migrainosus. (Id.). Graham reported Excedrin migraine did help reduce the severity of the migraines. (ECF No. 16 at 90). Graham was again referred to neurology. (Id.). Graham was continued on Lexapro for depression. (Id.). Graham's psoriatic arthritis was deemed severe but controlled, and she was referred to the clinic's rheumatology practice. (ECF No. 16 at 91).

The notes further state:

I did inform the patient her weight/BMI is not well controlled and currently unstable. I did discuss the importance of weight loss as it could increase the risk of cardiovascular disease, stroke, [] diabetes as well as a multitude of musculoskeletal problems such as osteoarthritis. Did offer the patient follow-up visits to monitor weight did advise diet low calories, low in fat and high in fiber. I also offered the patient a referral to a dietitian/nutritionist to further work on goals of weight loss.

(ECF No. 16 at 92). The physician also “encourage[d]” regular cardiovascular exercise and healthy nutrition.” (Id.).

Graham was seen by PA Brooker on April 7, 2021. (ECF No. 16-1 at 189). PA Brooker noted:

... She has not been seen in over 3 months due to our office no longer taking her insurance. Patient is self-pay today. She states that she is concerned she is going to lose her disability. She states that she may not have insurance if she loses disability. Patient is concerned up with the cost of her medications. She continues to have debilitating low back pain as well as pain into her right lower extremity. She states that she also has migraines which sometimes last more than 3 days. She is going to be establishing a neurologist. She has also not seen her rheumatologist due to having a large balance. But states that this is now been resolved and she will be able to follow up. She is tearful today regarding concerns over her disability and we also discussed that she has been depressed and is going to be seeing a psychiatrist because her primary care doctor no longer feels comfortable writing her medication.

(ECF No. 16-1 at 190) (emphasis added). Graham reported her average daily pain as 6, and as constant and sharp, burning, tingling, shooting, and stabbing, made worse with sitting, standing, and “[t]oo much activity.” (Id.). She stated she was experiencing trouble concentrating and drowsiness. (Id.).

Graham was seen by PA Brooker on June 30, 2021. (ECF No. 16-1 at 183). Her primary complaint was low back pain. (Id.). She said the pain was constant, sharp, burning, shooting, and worse with twisting, walking and exercise. (Id.). Graham reported her current medication provided 10 to 30 percent relief. (Id.). She reported she needed “some help but manage most of my personal care;” pain prevented her “from walking more than a quarter mile;” she could lift “light to medium weights” but not heavy weights; and pain prevented her from “sitting for more than half an hour” and prevented her from standing for more than 10 minutes. (ECF No. 16-1 at 185-86). Graham reported getting less than four hours of sleep each night, and stated pain restricted her social life. (ECF No. 16-1 at 186). With regard to traveling, Graham averred the “[p]ain is bad but I manage journeys over two hours.” (Id.) (emphasis added). The notes state:

Pt's lumbar spine and right LE pain is persistent along with pain in her joints due to psoriatic arthritis. Pt was advised to f/u with rheum as able. She has not been able to see psychiatry due to lack of insurance. . . . Recall, Dr. Landsman he recommends lumbar [medial branch nerve blocks]. Pt has not yet scheduled yet due to insurance issues. ... she will likely have to pay cash for her prescriptions at least for several months.

(ECF No. 16-1 at 187) (emphasis added).

There are no medical treatment notes in the record on appeal subsequent to June 30, 2021, and no treatment notes from Dr. Landsman appear in the record on appeal.

Graham was not represented by counsel at the hearing conducted in April of 2022 before an ALJ, although the hearing had been continued to allow her to obtain an attorney or non-attorney advocate. She allowed she had been given extra time to obtain an advocate but did not obtain assistance. (ECF No. 17-3 at 9). The ALJ explained they would leave the record open so Graham could submit additional records, inter alia, 2021 records from “Valley Pain.” (ECF No. 17-3 at 14). Graham stated she had not been seen at “Valley Pain” in 2022. (ECF No. 17-3 at 15).¹⁵ Graham testified:

15 The records produced are from Valley Anesthesiology & Pain Consultants, and duplicate records produced by the Commissioner.

Q Okay. Now besides Valley Pain, were there other providers that you are seeing or you have seen that we don't have that you think we need to have?

A I signed up for insurance with open enrollment this year, because accidentally my insurance was, at the time, cancelled, so I wasn't able to see anybody for most of 2021 and I paid cash to see my pain management -until I couldn't afford to anymore.

Q Okay.

A So I set up insurance this year and I have set up appointments, well I've set up an appointment with a primary care doctor and l've asked for referrals for psych and for rheumatology.

Q Now weren't you receiving health insurance through your disability, or was that taken away from you?

A It got turned off accidentally, probably twice in the last three years. And because it got turned off, I was -- I had to fill out paperwork, it took a few months to get it turned back on, but then they put me back on an original Medicare instead of a regular plan. I can't afford original Medicare. I don't think anybody could afford original Medicare.

(ECF No. 17-3 at 15-16).

Q. ... Is there anything about those records, knowing that I haven't seen them, yet, that you want to tell me about what they say?

A Specifically it addresses my imaging that I have, I'm sorry, can I just have a moment to find the page?

Q Yes, take your time.

A Thank you. Okay, basically it states that I have spinal abnormalities that are causing myelopathy on the right side, bilateral but it's mostly on the right side, and radiculopathy pain. I'm so sorry.

Q Okay, so it's saying you have issues with your back that are causing--

A And it's showing that it's confirmed with imaging.

Q Okay. Is that -

A That I had.

Q Do you remember, was that an x-ray or was that an MRI?

A It was an MRI, I believe.

Q Okay. And so the MRI shows you've got degenerative issues in your spine, the low back all the way through your neck, and that's causing issues with your extremities, like either your hands or your legs?

A Yeah, I do actually. It does cause problems with that but the pain problem is my low back let's go, I can't walk sometimes. I don't know if it's because I do too much or not.

Q Okay.

A This shows that there's changes showing that I do have some spurs, I guess deformities.

Q It's a congenital issue with your spine.

A Yes, congenital, thank you, it's a congenital issue, thank you.

(ECF No. 17-3 at 16-17). Graham also testified: “. my reports also show worsening depression and her trying to change my medications.” (ECF No. 17-3 at 17-18).

Graham testified she was still getting her monthly disability benefit checks: “They were cut off for -- from April until, I want to say August or September of [2021], and ... they had cut off my benefits then, my pay and my insurance, so I had to rely on family ... when they sent money ... the back pay, obviously it was used to take care of the bills and everything that weren't getting paid for those months.” (ECF No. 17-3 at 20-21).

The ALJ and Graham then discussed the original award of benefits in 2005 and the conditions Graham alleged were disabling in 2018 through 2022.

Q Okay. All right, so what were the conditions that led to you getting benefits in the first place?

A The main problem was I couldn't stand up or I couldn't - my back was in so much pain I couldn't work anymore. So I saw my doctor and I told him I was in pain all the time. I didn't understand why I was in pain all the time because I was in my early 20's and reasonably healthy. And so he said I needed to apply for disability and we would start finding out what was going on. So I started with symptoms instead of diagnoses.

Q Okay. And then what did you find out were the diagnoses behind those symptoms?

A They did x-rays and they found I had spinal stenosis, herniated and bulging disks, and they also found I had arthritis, psoriatic arthritis, and also messing with all of it, I have severe depression, well they said bipolar. They said I had severe bipolar and that was causing my pain to have issues, which tied into the fibromyalgia they diagnosed me with. And then on top of all of that, I was having, I'm still having severe incontinence. I have severe diarrhea and I don't know when I'm going to go or not. And so that was causing a lot of issues at work and they were trying to find out why that was an issue and they diagnosed me with IBS diarrhea. I guess it's all autoimmune. They said it's all my autoimmune system just attacking my body.

(ECF No. 17-3 at 21-22).

Graham testified that she and her husband were both disabled, with her husband becoming disabled in 2016, and that they were living with her in-laws. (ECF No. 17-3 at 24). She testified “There's days where I can't do anything, there's days where he can't do anything ... his parents help the best they can but his mom's been in bed for months and it's all of us just trying to help each other.” (Id.).

With regard to her impairments, and the ALJ asked Graham if there was “anything else” other than spinal stenosis, fibromyalgia, arthritis, and IBS, and she responded: “Bipolar, with severe depression,” and asthma. (ECF No. 17-3 at 25).

The ALJ inquired as to Graham's activities of daily living, i.e., her ability to function, to be on her feet, and her ability to lift and carry things. She responded: “It varies from day to day. I don't lift very heavy things.” (Id.). She stated:

I'm not going to lie, when things fall or I have to carry things, I just leave them on the floor and I tell them they're dead to me. It's just, that's it. When it comes to standing, sometimes I can stand for, you know, an hour or two, as long as I'm trying to move and I can adjust constantly.

(Id.). She testified: “There's some days I can't stand at all and I'm just completely in bed. I'm just constantly shifting, trying to find relief.” (ECF No. 17-3 at 25-26). She also testified: “When it comes to cooking, though, I'm pretty much the one that's been doing meals. .. is just, you know, easy. I do one big meal a day and everything else,” and that a “big meal” meant “probably throw lasagna in the oven or I, sometimes I make breakfast for dinner because that's super quick.” (ECF No. 17-3 at 26). She averred her eight-year-old son did his own laundry. (Id.).

Graham also testified her son was home-schooled, and that she was “back and forth” with his home classroom “in and out of the room or I'll sit next to him while he's doing his school,” and this was because of the COVID pandemic. (ECF No. 17-3 at 27). She testified she was “in immunosuppressive therapy, because my immune system, I turned it off so it doesn't work. And then I have in-laws that are very sick so we stay at home, we don't go out. If we do go out it's to the grocery store. (Id.).

With regard to a “typical day,” Graham testified:

A I wake up anywhere between 4:30 and 7:00, if I actually get to sleep. And then l'm in the restroom for probably about an hour in the morning. .

Q And why is that?

A Oh, because my stomach is upset every single time I wake up and all through the day, and usually if -- I don't eat all day long until bedtime because I get such bad diarrhea. So pretty much the morning is me paying for all of that. So deal with diarrhea in the morning, get dressed, go make

some coffee, make sure my parent's coffee is made. And then it's time to wake up [her son], and then it's trying to get him something to eat. Usually it's a baggie of cereal or something. And then I'm back and forth in the classroom.

I try to get some sort of chore, like maybe some dishes or something done, figure out if we have something for dinner for the night, and if not, who's going to volunteer to make dinner for the night. We get through with school probably around 10:30, 11:00, and then I sit with him and go over his assignments, anything he didn't get done. ...

And then he goes to be on break and lunch until 1:30, which is when he goes back to small groups. And then he's done with that about 2:00. And then if we have to run errands or anything like that, we do. Otherwise, I might go lie down for a few hours if I know I don't have to do anything, or I just kind of move from seat to seat in the house.

And then as I go along I just kind of pick up here and there, you know. When you see things, oh, that needs to go in the trash. Somebody really needs to wash that, oh, my God. Then I make dinner, probably around 4:00 or 5:00. And when I'm done with that, I am done. That's it, I am done for the night. I either go sit down or I go lie down.

(ECF No. 17-3 at 28-29).

Graham testified that she worked “[b]etween 8 and 12 hour” shifts when working as a pharmacy technician at Walgreens. (ECF No. 17-2 at 29-30). When asked by the ALJ: “What would your ability be to handle that job, you know, in terms of the requirements that you be on your feet for a portion of the day, maybe even most of the day, as well as your ability to lift and carry things?” Graham replied she could stand up for about 20 minutes before having to lean on the counter and shift from side to side, or sit down, due to back pain, and that she could not do “filing” or work a cash register because the “arthritis in my hands is so bad, I work on the computer for a few minutes and I just want to cut my hands off.” (ECF No. 17-3 at 30). She testified she could not bend to get prescriptions from bins or to stock prescriptions. (Id.). She testified her ability to use her hands was greatly reduced, and that she broke “things sometimes.” (Id.). She testified she could use her hands “for a very short amount of time, and it hurts very badly, and I can't use my hands for very long at a time.” (ECF No. 17-3 at 30-31). Graham testified she could not lift more than ten pounds, and that sometimes her family had groceries delivered. (ECF No. 17-3 at 31). Graham stated the heaviest thing she lifted at the grocery store was “[m]aybe a 2-liter soda.” (Id.).

Graham testified she had never obtained a driver's license because when she

... was first diagnosed with this, they started putting me on narcotics on occasions, so it was illegal for me to drive anyways, there was no point. Then I stopped narcotics when 1 became pregnant with my son and I thought about it because I'd have to take my son places, but I couldn't physically handle it. I can't focus long enough sometimes. I don't -- I can't handle too much going on at once, I shut down. I panic and I freak out and I shut down.

(ECF No. 17-3 at 32).

Graham testified that although she prepared simple meals for the family, she would take breaks to sit down, and she could not perform some tasks due to her wrists pain, i.e., she could not carry pans to the sink. She further testified that “[w]hen it comes to chopping things, sometimes I start off okay but then my hands get really weak and I can't finish or I slice myself because I'm like stubborn and stuff.” (ECF No. 17-3 at 33).

Graham testified she could sometimes bathe herself, and she showered once a week or once every two weeks, and she washed her hair in the sink. She testified she sometimes needed assistance removing her clothing. (ECF No. 17-3 at 34). She also volunteered that she got “flustered all day long, but [her] doctors don't put it in the notes.” (ECF No. 17-3 at 35). She further testified:

I don't sleep. If I do sleep, it's for a few hours. I'm emotionally all over the place right now. I have not sought any new pain management because they sent me a bill for $500 even though I was paying cash last summer. And after going all over the social security notes, I see that I really need like mental help because I can't do anything with my pain without this. . when I'm depressed [] my depression causes my pain to worsen and stress causes that to worsen. And everything is always stressful. There's not a single thing that is not. And thinking about trying to go into a place and try to hold a schedule . I can't show up places. . I just don't know how to explain it. . I've lost 40 pounds in the last two months. . I just don't eat. . [I currently weigh 196 pounds] .

(ECF No. 17-3 at 34-36). The ALJ asked “so you were almost 240 a couple a months ago?” and Graham responded: “Yeah. Yeah, last summer I was 260 and it took actual work to get down to 240 something.” (ECF No. 17-3 at 36).

The ALJ asked the hearing vocational expert (“VE”) to to assume a hypothetical individual of Graham's age and education, who was limited to work performed at the light exertional level,¹⁶ with the mental ability to understand, remember and carry out instructions but was limited to performing simple routine and repetitive tasks not at a production rate pace such as assembly line work, and was limited to simple, work-related decisions and had the ability to interact with others on a frequent basis. (ECF No. 17-3 at 39). The VE testified that based on the Dictionary of Occupational Titles and their own experience, such an individual could perform work available in the national economy, such as a janitor, a merchandise marker, and an advertising materials distributor, all classified as unskilled work performed at the light exertional level. (ECF No. 17-3 at 40).

16 The light exertional level describes lifting and carrying 20 pounds occasionally, 10 pounds frequently, sitting, standing or walking for six hours in an eight-hour workday, and pushing and pulling as much as can lift and carry. Climbing ramps and stairs occasionally, never climbing ladders, ropes or scaffolds. Occasionally balancing, stooping, kneeling, crouching and crawling.

The ALJ also asked the VE to assume an individual of Graham's age and education who was limited to work performed at the sedentary exertional level, i.e., could only carry ten pounds occasionally and could only stand and walk for a total of two hours in an eight-hour workday, with the same non-exertional limitations as in the first hypothetical. (ECF No. 17-3 at 40-41). The VE responded that such an individual could perform the jobs of addresser, table worker, or document preparer. (ECF No. 17-3 at 40). In response to the ALJ's question, the VE testified that an employer would accept being off-task “less than five minutes per hour, and they consider that changing from task to task but staying within the workstation, work environment,” and that an employer would tolerate one absence per month, and “beyond that there would need to be an accommodation.” (ECF No. 17-3 at 41). Graham asked “what does” a table worker and a document preparer do, and the VE responded a table worker inspected “materials at a workstation setting,” and a document preparer would scan documents. (ECF No. 17-3 at 42). Graham asked if those positions would requiring using one's hands all day long, and the VE responded: “in order to perform that job they would need to be able to use their hands on a frequent basis.” (Id.). Graham responded: “I don't have any other questions. I guess I just don't agree.” (Id.).

V. ALJ's Decision

In the decision denying benefits, issued May 22, 2022, the ALJ noted that although the hearing was continued so that Graham could obtain counsel or a nonattorney advocate, Graham ultimately chose to appear and to testify without assistance. (ECF No. 15-3 at 18). The ALJ further noted that although Graham submitted or informed the Administrative Law Judge about additional written evidence less than five business days before the scheduled hearing date, they would admit the evidence into the record. (ECF No. 15-3 at 19). The ALJ also held the record open for additional records from Graham's pain management practice, and admitted those records into evidence when received. (Id.). The ALJ further noted: “The record was additionally held open following the hearing to allow the claimant additional time to review the medical evidence of record, as she stated she lost access to the file. No objections to the medical evidence of record were received.” (Id.).

In the ALJ's 37-page decision they found and affirmed Graham's prior period of disability ended on August 1, 2018. The ALJ concluded Graham had not engaged in substantial gainful activity since the CPD, i.e., December 13, 2023, and Graham had not become disabled again since that date. The ALJ determined:

At the time of the CPD, the claimant had the following medically determinable impairments: irritable bowel syndrome, morbid obesity, lumbar spondylosis with spinal stenosis, psoriatic arthritis, migraines, fibromyalgia, and bipolar disorder. These impairments were found to result in the residual functional capacity to understand, remember, and carry out simple instructions on a limited basis, but she could not work within a schedule, or sustain an ordinary routine. She could not complete a normal work week on a continuing basis. Social interactions and adaptation were adequate.

(ECF No. 15-3 at 20).

At the second step of the evaluation the ALJ concluded Graham had severe impairments. The ALJ determined, inter alia, that the medical evidence established Graham did develop asthma and hypothyroidism after the CPD, but these impairments were non-severe. (ECF No. 15-3 at 21). They also concluded Graham's “CPD impairments of irritable bowel syndrome and migraines are also non-severe. Thus, the only impairments that are functionally limiting were present at the CPD.” (Id.). The ALJ concluded that, since August 1, 2018, Graham continued to have severe impairments, i.e., obesity, lumbar spondylosis with spinal stenosis, psoriatic arthritis, fibromyalgia, and bipolar disorder, and that these impairments had more than a minimal effect Graham's ability to perform basic work activities. (Id.). The ALJ concluded Graham's migraine headaches were not severe, finding:

The record also contained endorsement of migraines occurring twice weekly lasting for eight hours to two days. This resulted in an admonition to limit treatment to prevent medication overuse headache and keep a headache diary. (Ex. 23F at 3-5). Thereafter, however, she often denied headaches. (See, e.g., Ex. 24F at 4; 28F at 4). Moreover, providers noted that her headaches were controlled and stable on her medication regimen. (Ex. 54F at 9). Such evidence demonstrates that the claimant's headaches did not occur with a frequency or intensity that would be more than minimally limiting. Accordingly, the claimant's migraines are nonsevere.

(Id.).

The ALJ found none of Graham's impairments met or medically equaled the severity of a listed impairment listed. (ECF No. 15-3 at 22). The ALJ analyzed the “paragraph B” criteria regarding Graham's mental health issues, i.e., whether the impairments met or equaled the listing regarding depressive, bipolar, and related disorders. (ECF No. 15-3 at 24). The ALJ determined, with regard to the paragraph B criteria, that Graham had moderate limitations with regard to concentrating, persisting, or maintaining pace, and in adapting or managing herself. (ECF No. 15-3 at 24-25). The ALJ concluded that “[b]ecause the claimant's mental impairments do not cause at least one ‘extreme' limitation or two ‘marked' limitations, the ‘paragraph B' criteria are not satisfied.” (ECF No. 15-3 at 25). The ALJ further concluded the evidence failed to establish the presence of “paragraph C” criteria.

At the third step of the evaluation the ALJ determined:

The medical evidence supports a finding that, by August 1, 2018, there had been a decrease in medical severity of the impairments present at the time of the CPD. At the ... CPD, the claimant's mental impairment and chronic pain interfered with her function to the extent that she could not complete a workday/week without interference from her symptoms and was only able to complete simple instructions on a limited basis. [] Since that time however, there has been a significant improvement in the claimant's me[n]tal function and pain, such that . the claimant is able to independently, appropriately, and effectively complete simple, routine, and repetitive tasks at a non-production pace on a sustained basis. Indeed, her presentations, even when reporting high levels of pain[,] revealed her to be in no acute distress and even well appearing despite her complaints of constant pain. (See, e.g., Ex. 42F at 4; 57F at 60, 107). Moreover, mental status examination generally revealed normal mood, affect, and cognitive function, including attention, concentration, and memory. (See, e.g., Ex. 21F at 12; 25F at 9; 26F; 38 F at 11; 54F at 7). ..

(ECF No. 15-3 at 25-26) (emphasis added).

The ALJ concluded Graham's “medical improvement [was] related to the ability to work because it resulted in an increase in the claimant's residual functional capacity (20 CFR 404.1594(c)(3)(ii)).” (ECF No. 15-3 at 36). The ALJ reasoned:

. Based on the impairments present at the time of the CPD, the residual functional capacity the claimant has had since August 1, 2018 is less restrictive than the one the claimant had at the time of the CPD. Indeed, though the residual functional capacity now reflects physical limitations, it also reflects that, since the cessation date, the claimant has been able to complete simple, routine, and repetitive tasks with independently, appropriately, and effectively on a sustained basis, which represented an improvement in function since the CPD.

(ECF No. 15-2 at 35).

The ALJ found Graham had the residual functional capacity to perform work at the light exertional level, with some limitations. (ECF No. 15-3 at ¶ 26). The ALJ concluded greater limitations were not warranted because the medical evidence of record did not support the intensity, persistence, or limiting effects that Graham ascribes to her symptoms. Citing to the consultative psychiatric evaluation by Dr. McGady and the treatment notes from Sahara Behavioral Health, the ALJ noted that “despite any pain or other symptoms, [Graham] was able to focus and concentrate well.” (ECF No. 15-3 at 28). The ALJ noted Graham's “providers regularly noted that she was in no acute distress and was well appearing despite her complaints of constant pain,” that Graham sat “comfortably for the duration of her physical consultative examination,” and that the record “indicated that she had improvement and was generally feeling well on her medication regimen.” (Id.). The ALJ then discussed all of the medical evidence of record, including the opinions of the state agency physicians, beginning in 2006 and at the time of the CPD in 2013 and the records from 2013 through the date of the decision. (ECF No. 15-3 at 28-35). With regard to Graham's statements about her pain, the ALJ concluded:

In accordance with 20 CFR 404.1529 and SSR 16-3p, pain cannot be found to have a significant effect on a disability determination or decision unless medical signs or laboratory findings show that a medically determinable physical or mental impairment is present that could reasonably be expected to produce the pain alleged. In the instant case, medical signs and other evidence substantiate the claimant's physical impairments and are supportive that these impairments are capable of producing the alleged pain. Here, the claimant's lumbar degenerative disc disease is confirmed with imaging, while psoriatic arthritis is established with diffuse pain, swelling, and psoriatic lesions and fibromyalgia had been confirmed with tender point testing. These impairments would reasonably be expected to produce a degree of the pain the claimant alleges.

Thus, I conclude that record does to some extent support the claimant's subjective complaints with objective findings on examination as discussed in the body of this decision. Therefore, the claimant's pain contributes to the limitation to simple, repetitive, routine tasks to account for any diminished concentration, attention, or persistence caused by her pain. Moreover, the residual functional capacity limits the claimant to light work with additional postural activities to account for any pain, discomfort, range of motion limitations, or weakness caused by these impairments. These restrictions also serve to prevent exacerbation of her symptoms. Greater limitations are not warranted, however, as the medical evidence of

record does not support the intensity, persistence, or limiting effects that the claimant ascribes to her symptoms.

(ECF No. 15-3 at 28).

The ALJ determined that, considering Graham's age, education, work experience, and her residual functional capacity, Graham was able to perform a significant number of jobs existing in the national economy classified at the light exertional level and as unskilled labor, such as those cited by the vocational expert, i.e., cleaner or janitor, merchandise marker, and advertising material distributor. In reaching this conclusion the ALJ relied on the vocational expert's testimony, which the ALJ found congruent with information contained in the Dictionary of Occupational Titles. The ALJ noted Graham had not objected to the expert's testimony that an individual with the residual functional capacity assessed by the ALJ could perform the jobs of cleaner or janitor, merchandise marker, and advertising material distributor. (Id.).¹⁷

17 Graham's only record disagreement with the VE's opinion was apparently with regard to the assertions that these jobs would require the hypothetical individual's use of their hands.

On or about June 29, 2022, Graham filed a pro se “Reason for Appeal,” averring:

I would like the Appeals Council to review the decision of my case, as I did not realize how much help I needed to gather information, did not know I could ask for help from my doctors to complete forms. I am disabled. During this review, that started in 2018, my income has been shut off numerous times, as well as my insurance, due to “glitches” in the system, though continuation forms were turned in and accepted. While, eventually, this was resolved each time, it certainly lead to gaps in care. To correct this, I have hired legal [counsel], re-established care with my doctors and specialists, and am attempting to reconfirm my diagnoses, so I have clearer facts for my case. I have multiple problems that all affect each other and I need help. I am getting it. I would appreciate it if the council would reconsider my case. I also need continuation of my medical and disability benefits. I am trying very hard to get my medical situation situated and my specialists re-established, but if my insurance and income get cut off again, I will be unable to receive care or present my case. I have had interrupted care, interrupted income, unforeseen medical bills, unfortunate doctors and bad record keeping all piled up during this review. My spinal doctor didn't even have a record of my visit about surgical options. Their computers

went down that day, so my visit didn't exist. Now I need a new opinion, actually on record. ... I need time to gather evidence and fix this.

(ECF No. 15-5 at 135). Graham then retained counsel to prosecute her appeal to the Social Security Appeals Council. (ECF No. 15-5 at 134). Graham's counsel filed a pleading with the Appeals Council on September 2, 2022. (ECF No. 15-7 at 177). Counsel argued, inter alia, that Graham met the listing for inflammatory arthritis. (ECF No. 15-7 at 177-180). The Appeals Council affirmed the ALJ's decision on March 31, 2023. (ECF No. 15-3 at 2-4).

VI. Analysis of Graham's Claims for Relief

A. Finding of Medical Improvement

Graham contends the ALJ committed materially harmful error by finding she had medical improvement related to her ability to work. She asserts the ALJ failed to sufficiently conduct the entire inquiry required by the governing regulations.

When determining whether a claimant has medically improved and is no longer disabled, the ALJ is required to compare the “medical severity” of the impairment(s) “present at the time of the most recent favorable medical decision,” i.e., the comparison point decision (in this matter the 2013 decision), to the medical severity of the impairment(s) at the time of the comparison under appeal (in this matter the 2018 decision). 20 C.F.R. § 404.1594(b)(7). Medical improvement is defined as “any decrease in the medical severity” of a recipient's impairment, and requires a “comparison of prior and current medical evidence which must show that there have been changes (improvement) in the symptoms, signs or laboratory findings associated with that impairment(s).” 20 C.F.R. §§ 404.1594(b)(1) & 404.1594(c)(1) (emphasis added).

With regard to the finding of medical improvement, the ALJ found and concluded:

The medical evidence supports a finding that, by August 1, 2018, there had been a decrease in medical severity of the impairments present at the time of the CPD. At the initial grant of disability and again at the CPD, the claimant's mental impairment and chronic pain interfered with her function to the extent that she could not complete a workday/week without interference from her symptoms and was only able to complete simple

instructions on a limited basis. (See, e.g., Ex. 5A, 7F, 8F, 20F). Since that time however, there has been a significant improvement in the claimant's mental function and pain, such that, as in the residual functional capacity below, the claimant is able to independently, appropriately, and effectively complete simple, routine, and repetitive tasks at a non-production pace on a sustained basis. Indeed, her presentations, even when reporting high levels of pain revealed her to be in no acute distress and even well appearing despite her complaints of constant pain. (See, e.g., Ex. 42F at 4; 57F at 60, 107). Moreover, mental status examination generally revealed normal mood, affect, and cognitive function, including attention, concentration, and memory. (See, e.g., Ex. 21F at 12; 25F at 9; 26F; 38F at 11; 54F at 7). This, as explained in greater detail herein, resulted in increased capacity for basic work activities.

(ECF No. 15-3 at 25-26) (emphasis added). The ALJ stated Graham's improvement was related to the ability to work because their assessed residual functional capacity was “less restrictive than the one the claimant had at the time of the CPD. Indeed, though the residual functional capacity now reflects physical limitations, it also reflects that, since the cessation date, the claimant has been able to complete simple, routine, and repetitive tasks with independently, appropriately, and effectively on a sustained basis, which represented an improvement in function since the CPD.” (ECF No. 15-3 at 35).

Graham asserts the ALJ's analysis in support of the conclusion that Graham had medical improvement was insufficient and the conclusion was not supported by substantial evidence. Graham asserts the ALJ was required to, but did not, compare the medical severity of Graham's impairments as they were in December of 2013, i.e., the CPD (the last favorable decision in her case), to the medical severity of her impairments at the time of the comparison. Graham asserts ALJ failed to compare any evidence from the time of the favorable decision in 2013 to evidence at the time of the ALJ's decision. Graham asserts the ALJ's “entire analysis,” consisted of an finding regarding Graham's impairments as of August 1, 2018. Graham contends “the ALJ did not compare evidence from 2013 to the current evidence, and the ALJ's citations to the record do not illustrate that Graham's impairments had improved such that she could return to work.” (ECF No. 20 at 12).

The ALJ conducted the appropriate analysis. The record on appeal does not include much, if any, “evidence” with regard to Graham's medical condition in 2013 and the years prior to that date. Other than the opinions of the state agency consulting and reviewing physicians and psychiatrist, there was minimal evidence from 2013 for the ALJ to compare with the evidence from 2018. Notably, the record on appeal contains no medical treatment notes from 2007, 2008, 2010, and 2011. The record contains eight monthly treatment notes from Irving Orthopedics & Sports Medicine (which Graham referred to as “pain management”) from February 6 through September 9, 2009, when Graham was apparently living in Texas. The treatment notes from 2012 are comprised of a single (March 30, 2012), treatment note from Indigo Health Clinic, and three treatment notes from March 8, 2012 to July 3, 2012 from West Valley Pain Management.¹⁸ The only treatment notes from 2013, which Graham argues should have been compared to 2018 records, are: (1) records from Arrowhead Obstetrics & Gynecology from May through first of August; (2) a single progress note from an August 15, 2013, appointment at Arizona Neurological Institute for a rheumatological evaluation, noting Graham had done well “for several years with combined treatment of Remicade and methotrexate,” but she had been off her medication for “about a year and a half in the past lost insurance .. .;” and (3) two office treatment notes from Dr. Glover, an internist, with regard to a cough. (ECF No. 15-8).¹⁹ All other 2013 medical status documents are from state consultative examining physicians. Accordingly, there was a paucity of “evidence from 2013” for the ALJ to compare with 2018 evidence.

18 The pain management appointments were with regard to chronic low back pain. At the May 7, 2012, appointment Graham reported a spinal surgeon told her she was not a candidate for surgery due to her “age [30] and weight [260 pounds].” (ECF No. 15-8 at 131-32). At that time her physician recommended neuromodulation (a spinal cord stimulator), which Graham did not wish to undergo because she was trying to become pregnant. (ECF No. 15-8 at 133). The physician discussed weight control, not consuming alcohol while on opioids, and also advised “she needs to be off opioids if planning pregnancy.” (ECF No. 15-8 at 134).

19 Dr. Glover's new patient consultation notes dated August 5, 2013, note Graham “smoked but very briefly about two years at a pack per day and quit in January of this year.” (ECF No. 15-8 at 185).

Additionally, although Graham told her physicians that she was having difficulty obtaining medications due to lapses in her insurance, her disability status continued uninterrupted from 2006 through at least April 5, 2013, when the Commissioner notified Graham that she had been deemed no longer disabled and her period of disability would terminate on June 30, 2013. (ECF No. 15-4 at 4). Accordingly, it is unclear what Graham meant when she reported in August of 2013 that she had “lost” her insurance for “a year and a half” prior to that time. It is also noted that there are no treatment records from 2016, at which time Graham was still on disability status, her benefits being continued upon reconsideration in 2013.

Furthermore, the only impairment which was found completely disabling in 2013 was a mental impairment, and Graham by her own admission had not been in any form of continued mental health treatment throughout the entire time she was deemed disabled. At her initial award of benefits Graham was determined to be limited, rather than disabled, by her physical ailments, and this was the same conclusion reached in 2013. Notably, in 2013 Graham herself did not assert her mental health as a basis for disability, but instead simply mentioned on a 2013 report that at some point in time a treating physician had labeled her as bipolar on the basis of her sleep disturbance. Nonetheless, in 2013 Graham was found disabled by an “affective disorder,” which had not been diagnosed by any treating mental health professional.

Furthermore, it is arguable whether the ALJ was required to find that Graham's physical ailments, which in 2013 were deemed “severe” but not so functionally limiting as to preclude all work, had “improved” since the comparison point decision. Graham appears to contend that the ALJ was required to establish improvement in Graham's nondisabling physical impairments and determine whether those had improved at the third step of the evaluation. However, a logical reading of the regulations supports a conclusion that the ALJ was only required to determine at the sixth and seventh step of the valuation whether, at the time of the ALJ's decision, that the severe physical impairments rendered her unable to perform any substantial gainful activity.

Moreover, in their decision the ALJ did discuss the 2013 record evidence regarding Graham's assessed limitations, including the prior opinions of Graham's treating physicians and the examining and consulting psychiatrists, and the 2013 opinion of a consultative examining physician and consulting and examining psychiatrist. The ALJ did discuss what severe impairments were found in 2013, whether or not those impairments continued to be “severe,” and further noted the degree to which “new” impairments (hypothyroidism, asthma, and migraine headaches) were or were not severe. Additionally, the ALJ noted there was medical improvement in Graham's mental health, the only impairment which was previously found to be completely disabling, citing to prior and more recent mental health evaluations.

Graham does not argue that her mental health impairment rendered her disabled in 2018, but instead argues that at the time of the ALJ's decision her physical ailments had worsened since 2013. But this is not the issue at the third step of the evaluation; whether Graham's physical ailments were disabling was a subject for discussion when the ALJ determined Graham's residual functional capacity later in the analysis.

Any legal error in the ALJ's analysis was harmless, as the substantial evidence in the record supports the ALJ's conclusion that there was medical improvement with regard to Graham's impairments. The record contains substantial evidence that with regard to the disabling impairment, i.e., Graham's mental health (whether an “affective disorder,” bipolar disorder, or depression) was improved. Most notably, from the initial time Graham was determined disabled in 2006, through 2013 and through 2018 and through the date of the ALJ's decision, only once from 2013 through 2018 did Graham follow-through on repeated medical recommendations that she seek psychiatric care, and at that time she told the psychiatrist that she only sought mental health treatment to support her claim for disability benefits. Furthermore, as the ALJ noted and the record substantiates, the physical impairments found at the time of the CPD, i.e., migraine headaches, fibromyalgia pain, IBS, and psoriatic arthritis pain, all improved with treatment and, accordingly, any error in failing to more thoroughly examine or note specific evidence from 2013 (which as noted supra was sparse) was harmless.

B. Symptom Testimony

Graham contends the ALJ improperly rejected her symptom testimony without stating clear and convincing reasons, supported by substantial evidence in the record, for doing so.

When evaluating a claimant's symptom testimony, the ALJ must engage in a two-step analysis. The ALJ must determine whether the claimant presented objective medical evidence of an impairment that could reasonably be expected to produce the symptoms alleged. 20 C.F.R. § 404.1529(b). If the claimant has presented such evidence, the ALJ proceeds to consider all of the evidence presented to determine the persistence and intensity of the alleged symptoms. Id. § 404.1529(c). If there is no evidence of malingering, the ALJ may reject the claimant's symptom testimony only by giving specific, clear, and convincing reasons supported by evidence in the record. E.g., Smith v. Kijakazi, 14 F.4th 1108, 1112 (9th Cir. 2021).²⁰ The ALJ must “set forth the reasoning behind [their] decisions in a way that allows for meaningful review.” Brown-Hunter v. Colvin, 806 F.3d 487, 492 (9th Cir. 2015). An ALJ may consider any “unexplained or inadequately explained failure to seek treatment or to follow a prescribed course of treatment.” Tommasetti, 533 F.3d at 1039. The ALJ may consider “whether the alleged symptoms are consistent with the medical evidence.” Lingenfelter v. Astrue, 504 F.3d 1028, 1040 (9th Cir. 2007). It is the ALJ's prerogative to “determine credibility, resolve conflicts in the testimony, and resolve ambiguities in the record.” Treichler v. Commissioner of Soc. Sec. Admin., 775 F.3d 1090, 1098 (9th Cir. 2014). The ALJ is not required to believe every allegation of disability, otherwise disability benefits would be available for the asking, a result plainly contrary to the Social Security Act. See Ahearn v. Saul, 988 F.3d 1111, 1116 (9th Cir. 2021). When a claimant establishes an underlying impairment, the ALJ must evaluate whether their symptom testimony is consistent with the objective medical evidence and the other evidence in the record. See 20 C.F.R. § 404.1529(c)(2)-(3). “[T]he ALJ is the final arbiter with respect to resolving ambiguities in the medical evidence.” Tommasetti, 533 F.3d at 1041.

20 The “clear and convincing standard” applies only to cases within the jurisdiction of the Ninth Circuit Court of Appeals. See Stephen E. Smith, Asking Too Much: The Ninth Circuit's Erroneous Review of Social Security Disability Determinations, 26 LEWIS & CLERK L. REV. 229, 233-34 (2002).

The ALJ found and concluded:

The claimant alleges continuing disability due to psoriatic arthritis, fibromyalgia, irritable bowel syndrome, migraines, bipolar disorder, asthma, chronic pain, herniated discs, and spinal stenosis. Her self-reported body mass index around the cessation date was approximately 45.3kg/m2. The claimant alleges that her impairments cause difficulty lifting, squatting, bending, standing, reaching, walking, sitting, kneeling, climbing stairs, remembering, completing tasks, concentrating, understanding, following instructions, using her hands, and getting along with others. She thought she could walk a block before needing a 15- to 30-minute break. She stated that she is not supposed to lift more than eight pounds. She stated that she can perform manipulative activities for very short periods. Her impairments cause some difficulty attending to her personal care. She prepares some simple meals, but otherwise relies on her mother-in-law to cook. Overexerting herself with household chores causes her to need extended rest periods in bed. The claimant reported that she does not have a driver's license, but does not believe she could drive even if she did as too much going on at once causes her to shut down. Nevertheless, she reported that she is able to provide care for her son, as well as her nieces and nephews. She even home schools her niece twice per week. She did state that her inlaws and brother provide some assistance with childcare and household chores. She reported that loss of insurance limited her ability to obtain medical care. She stated that loss of appetite resulted in a 40-pound weight loss in the last several months. (See, e.g., Hearing; Ex. 8E, 14E, 16E, 18E, 19E).

After considering the evidence of record, I find that the claimant's medically determinable impairments could have reasonably been expected to produce the alleged symptoms; however, the claimant's statements concerning the intensity, persistence and limiting effects of these symptoms are not entirely consistent with the objective medical and other evidence for the reasons explained in this decision. Accordingly, these statements have been found to affect the claimant's ability to work only to the extent they can reasonably be accepted as consistent with the objective medical and other evidence.

(ECF No. 15-3 at 26-27). The ALJ then noted the record evidence supporting “some degree of the pain, fatigue, and other physical symptoms alleged,” with regard to fibromyalgia, psoriatic arthritis, and degenerative changes to Graham's lumbar spine. (ECF No. 15-3 at 27). The ALJ noted these conditions were substantiated by medical evidence, and that the symptoms warranted functional limitations, as did Graham's obesity. (ECF No. 15-3 at 27-28). The ALJ determined Graham's pain would require a “limitation to simple, repetitive, routine tasks to account for any diminished concentration, attention, or persistence caused by her pain;” and that “the residual functional capacity limits the claimant to light work with additional postural activities to account for any pain, discomfort, range of motion limitations, or weakness caused by these impairments;” and that the assessed “restrictions also serve to prevent exacerbation of her symptoms.” (ECF No. 15-3 at 28). With regard to their finding that greater limitations were not warranted because record evidence did not support the intensity, persistence, or limiting affects of these conditions that Graham asserted, the ALJ noted the record evidence that Graham was able to focus and concentrate, and that Graham's health care providers regularly noted she was in no acute distress and she appeared well although she complained of constant pain. (Id.). The ALJ noted Graham was observed to sit comfortably throughout examinations, that the medical record indicated she experienced improvement from medication, and physical examinations returned normal findings in contrast to Graham's reports of her symptoms, i.e., she exhibited normal gait, she displayed normal range of motion in her extremities, and Graham's reflexes, sensation, and strength were recorded as within normal limits. (Id.). The ALJ pointed to record evidence that

... [i]n addition to grossly intact neurological function, straight leg raising test tests for lumbar radiculopathy were typically negative. (See, e.g., Ex. 32F; 36F at 4). Though there is no current imaging of her hands or feet, imaging from 2017 showed no inflammatory or erosive changes. To be sure, aside from small plantar and calcaneal spurs, these studies of her hands and feet were grossly normal. (Ex. 24F at 10, 12).

(ECF No. 15-3 at 29).

With regard to Graham's mental health, the ALJ noted that examinations regularly revealed normal mood, affect, judgment, insight, and memory, and Graham performed well on mini-mental status examinations, and her health care providers noted she could focus and concentrate well. (Id.). The ALJ also noted:

Moreover, while insurance issues interfered with her treatment at times, she acknowledged that she only saw psychiatrists for disability evaluations and did not follow up. (Ex. 29F at 1). Despite minimal mental health follow ups, it appears that the claimant's bipolar symptoms improved with medications alone and, based on the claimant's reports to providers, these resulted in no side effects. (See, e.g., Ex. 27F at 6; 29F at 1). It was even noted that her condition was stable. (Ex. 54F at 9). Overall, the claimant's mood abnormalities, apathy, and any effects of pain, considered in light of her improvement with minimal treatment and the regularity of grossly normal findings on mental status examinations demonstrate that the claimant[] retains fair function for work activities ..

(Id.). The ALJ found limitations were appropriate and restricted the functional capacity to performance of simple, routine, and repetitive tasks, and limited workplace interactions with supervisors, coworkers, and the public. (Id.). The ALJ then discussed the record medical opinions and third-party statements, including Graham's statements to her medical care providers.

The ALJ's opinion is free of legal error. The ALJ compared Graham's statements regarding her physical limitations to the objective record medical evidence. Because a “[c]ontradiction with the medical evidence is a sufficient basis for rejecting the claimant's subjective testimony,” the inconsistencies between Graham's testimony and the record medical evidence were sufficient to reject her complaints of debilitating limitations. See Smartt v. Kijakazi, 53 F.4th 489, 499 (9th Cir. 2022) (discussing the difference between inconsistency and lack of corroboration); Carmickle v. Commissioner of Soc. Sec. Admin., 553 F.3d 1155, 1161 (9th Cir. 2008) (“Contradiction with the medical record is a sufficient basis for rejecting the claimant's subjective testimony.”); Lingenfelter, 504 F.3d at 1040 (holding an ALJ may consider whether the alleged symptoms are consistent with the medical evidence); Regennitter v. Commissioner of Soc. Sec. Admin., 166 F.3d 1294, 1297 (9th Cir. 1998) (concluding a determination that a claimant's subjective complaints are “inconsistent with clinical observations” satisfies the clear and convincing requirement).

The record indicates Graham's impairments responded to treatment, supporting the ALJ's conclusion with regard to Graham's symptom testimony.²¹ See Darling v. Kijakazi, 2023 WL 4103935, at *2 (9th Cir. June 21, 2023) (holding the ALJ provided clear and convincing reasons to discount the claimant's subjective symptom testimony, including “treatment efficacy[] and longitudinal improvement”); Torres v. Saul, 798 Fed.Appx. 979, 981 (9th Cir. 2019) (“The [ALJ] proffered specific, clear, and convincing reasons for discounting [claimant's] pain and limitations testimony because the record showed that [her] conditions improved with treatment and were less severe than alleged.”).

21 For example, during her April 6, 2021, appointment with Dr. Hume, Graham reported her health was “fair,” she was satisfied with her current level of social interaction with family and friends and participation in activities outside of home, and her memory and mental health were fine. (ECF No. 16 at 88). Graham reported she was not experiencing diarrhea, arthralgias or joint pain, weakness, depression or fatigue. (Id.). Dr. Hume noted she was “healthy-appearing,” in no distress, and ambulating normally. (Id.). A pain assessment, using a standardized tool, was negative. (Id.). The severity of Graham's joint disease and fibromyalgia was “moderate,” her migraines were described as controlled, and Graham was advised to schedule an appointment with behavioral health services, which she did not do. (ECF No. 16 at 89).

Notably, in 2019 Graham apparently felt sufficiently well that she took an on-line class in medical billing and coding, which would presumably require some degree of concentration and memory. The record includes comments to Graham's health care providers that she was able to manage activities of daily living such as hygiene, weekly shopping, over-seeing her son's on-line schooling, and performing light house-keeping tasks. Additionally, Graham misreported her prior treatments (she stated she repeatedly underwent epidural injections, when the record supports this occurred only once), she repeatedly told her providers she was under psychiatric care when the record indicates the only time she received psychiatric care was solely for the purpose of seeking support for a continuation of her disability benefits, and she repeatedly ignored or failed to follow- through on her physician's referrals for psychiatric care and physical therapy.²² Notably, after being told that reducing her weight would enable her to undergo spinal surgery that would greatly alleviate her pain, and that the surgeon would assist her in getting her insurance to cover bariatric surgery to this end, Graham did not follow-up with providing the information the surgeon requested nor did she apparently act to reduce her weight. A favorable response to treatment and inconsistent reporting of symptoms are clear and convincing reasons for the ALJ to properly discount Graham's testimony. See Tommasetti, 533 F.3d at 1039-40; Khal v. Berryhill, 690 Fed.Appx. 499, 501-02 (9th Cir. 2017); Dyer ex rel. Dyer v. Colvin, 9 F.Supp.3d 1116, 1122 (D. Ariz. 2014).²³

22 Graham's failure to seek mental health care was not a result of a mental health impairment, but a conscious decision not to engage in mental health treatment. Accordingly, the ALJ could reasonably conclude that it undermined her credibility. Failing to seek active treatment permits the inference that the claimant's symptoms were not as disabling as she reported. See Metcalf v. Commissioner of Soc. Sec. Admin, 592 F.Supp.3d 857, 867 (D. Ariz. 2022); Williams v. Astrue, 2012 WL 1145090, at *12 (W. D. Wash. Mar. 14, 2012).

23 “The ALJ also expressly considered that, at times, Plaintiff was not cooperative or refused mental health counseling, indicated that he did not need counseling, or reported that his mental condition had improved with medication. The ALJ further found that inconsistent statements made by Plaintiff damaged his credibility.” Dyer ex rel. Dyer v. Colvin, 9 F.Supp.3d 1116, 1122 (D. Ariz. 2014).

The ALJ sufficiently identified clear and convincing reasons, supported by substantial record evidence, to reject Graham's testimony regarding the degree to which her ailments limited her ability to perform sedentary labor with non-exertional limitations. See Johnson v. Shalala, 60 F.3d 1428, 1434 (9th Cir. 1995) (finding inconsistencies between the record and medical evidence supports a rejection of a claimant's credibility); Warre v. Commissioner of Soc. Sec. Admin., 439 F.3d 1001, 1006 (9th Cir. 2006) (holding impairments that are effectively controlled with medication are not disabling). Although an ALJ must provide more than non-specific conclusions that a claimant's symptom testimony was inconsistent with their medical treatment, the ALJ is not required “to perform a line-by-line exegesis of the claimant's testimony ...” Lambert v. Saul, 980 F.3d 1266, 1277 (9th Cir. 2020). “The standard isn't whether [the] court is convinced, but instead whether the ALJ's rationale is clear enough that it has the power to convince.” Smartt, 53 F.4th at 499.

Substantial evidence supports the ALJ's discounting of Plaintiff's symptom testimony based on evidence of improvement and effective treatment. See Ahearn, 988 F.3d at 1115 (“[T]he threshold for [substantial] evidentiary sufficiency is not high.”). Although Graham focuses on favorable evidence and effectively advocates for alternatives to the ALJ's rational interpretation of the record, this does not suffice to demonstrate harmful error. See Ford, 950 F.3d ay 1154 (9th Cir. 2020) (holding that if the evidence is susceptible to more than one rational interpretation, the ALJ's conclusion must be upheld); Vazquez v. Kijakazi, 2023 WL 5453198, at *1 (9th Cir. Aug. 24, 2023) (affirming the ALJ's decision because it was “at least equally rational [as the plaintiff's interpretation of the evidence], and the reasoning is legally sufficient.”); Crawford v. Berryhill, 745 Fed.Appx. 751, 753 (9th Cir. 2018) (rejecting objections to the ALJ's findings that “amount[ed] to advocating for alternatives to the ALJ's rational interpretation of the record and therefore [did] not demonstrate error”). See also Thomas, 278 F.3d at 959 (holding that where substantial evidence supports the ALJ's assessment of a claimant's subjective complaints, the reviewing court “may not engage in second-guessing.”). The ALJ sufficiently addressed the substance of Graham's complaints but determined those allegations could not be fully credited in light of other record evidence.

Even if the ALJ committed legal error in not citing to more instances in the record where Graham's claims were belied, an ALJ's decision must be upheld when that error is harmless, i.e., where there is substantial evidence supporting the conclusion or the ALJ's “path” to their conclusion “may reasonably be discerned, even if the [ALJ] explains [their] decision with less than ideal clarity.” Treichle., 775 F.3d at 1099. See also BrownHunter, 806 F.3d at 492; King v. Commissioner of Soc. Sec. Admin., 2020 WL 5587429, at *2 (D. Ariz. Sept. 18, 2020). Graham's statements regarding her symptoms were belied by the record medical evidence. Most notably, although Graham alleged she was unable to use her hands due to pain, an independent physical examination revealed no issues with regard to dexterity. When “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, 533 F.3d at 1038. The Court may neither reweigh the evidence nor substitute its judgment for that of the ALJ, and when the evidence is susceptible to more than one rational interpretation, one of which supports the ALJ's decision, the Court must uphold that decision. E.g. Ahearn, 988 F.3d at 1115, citing Mayes v. Massanari, 276 F.3d 453, 459 (9th Cir. 2001); Thomas v. Barnhart, 278 F.3d 947, 954 (9th Cir. 2002); Trevizo, 871 F.3d at 674-75. The ALJ's decision regarding Graham's symptom testimony was a rational interpretation of the record evidence.

C. ALJ's Formulation of Graham's Residual Functional Capacity

Graham contends the ALJ committed materially harmful error by determining Graham's specific residual functional capacities (i.e., her specific exertional and non-exertional capacities for specific work-related tasks) in the absence of a record medical opinion regarding these specific capacities, noting the “ALJ discussed and rejected all medical opinions in this record.” (ECF No. 20 at 22) (emphasis in original). Graham argues the ALJ erred because he “did not rely on any medical opinions in this record to formulate the residual functional capacity determination for August 1, 2018 forward.” (ECF No. 20 at 23).

Graham's argument that the ALJ acted as a medical expert does not provide a sound basis for rejecting the ALJ's decision. The ALJ analyzed the diagnoses and opinions of Graham's physicians and the state agency examining and consulting physicians, in light of the entire record of objective medical evidence, before formulating a specific residual functional capacity. The ALJ did not impermissibly make their own medical findings, but instead incorporated the objective medical evidence into a residual functional capacity with regard to specific work-related activities. See Bischoff v. Kijakazi, 2023 WL 5319251, at *1 (9th Cir. Aug. 18, 2023). The “ALJ is responsible for translating and incorporating clinical findings into a succinct RFC.” Rounds v. Commissioner of Soc. Sec. Admin., 807 F.3d 996, 1006 (9th Cir. 2015). See also 20 C.F.R. § 404.1529(a) (providing the ALJ must “determine the extent to which [a claimant's] alleged functional limitations and restrictions due to pain or other symptoms can reasonably be accepted as consistent with the medical signs and laboratory findings and other evidence to decide how [her] symptoms affect [her] ability to work.”); Cady v. Kijakazi, 2023 WL 6937407, at *1 (9th Cir. Oct. 20, 2023); Carl v. Commissioner of Soc. Sec. Admin., 2023 WL 6532753, at *4 (D. Ariz. Oct. 6, 2023); Labine v. Commissioner of Soc. Sec. Admin., 2020 WL 6707822, at *4 (D. Ariz. Nov. 16, 2020) (concluding 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., 2020 WL 5810060, at *5 n.8 (D. Ariz. Sept. 30, 2020) (rejecting the same argument); Schott v. Commissioner of Soc. Sec., 2019 WL 5782324, at *5 (D. Ariz. Nov. 6, 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 ...”). The Ninth Circuit has opined that “ALJs are, at some level, capable of independently reviewing and forming conclusions about medical evidence to discharge their statutory duty to determine whether a claimant is disabled and cannot work.” Farlow v. Kijakazi, 53 F.4th 485, 488 (9th Cir. 2022).

VII. Conclusion

The Ninth Circuit Court of Appeals has recognized that the threshold for substantial evidentiary sufficiency is “not high,” and the Court must uphold an ALJ's conclusion if the evidence is susceptible to more than one rational interpretation. The ALJ's decision in this matter regarding disability is reasonable, free of harmful legal error, and supported by substantial record evidence and, therefore, the ALJ's decision should be affirmed.

Accordingly, IT IS RECOMMENDED that the decision of the Commissioner denying claims for disability-based benefits be affirmed, and that the Complaint be dismissed with prejudice.

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)(2) of the 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).