Arizona Cases August 23, 2023: Sicurello v. Kijakazi

Case Description

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REPORT AND RECOMMENDATION

ERIC J. MARKOVICH, UNITED STATES MAGISTRATE JUDGE

Currently pending before the Court is Plaintiff Jesse Sicurello's Opening Brief (Doc. 21). Defendant filed her Answering Brief (“Response”) (Doc. 22), and Plaintiff replied (“Reply”) (Doc. 24). Plaintiff brings this cause of action for review of the final decision of the Commissioner for Social Security pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3). Compl. (Doc. 1).

Pursuant to Rules 72.1 and 72.2 of the Local Rules of Civil Procedure, this matter was referred to Magistrate Judge Markovich for Report and Recommendation. Based upon the pleadings of the parties and the administrative record submitted to the Court, the Magistrate Judge recommends that the District Judge GRANT Plaintiff's Opening Brief (Doc. 21). ... ... ...

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I. BACKGROUND

A. Procedural History

On October 11, 2019, Plaintiff protectively filed a Title II application for Social Security Disability Insurance Benefits (“DIB”), as well as a Title XVI application for Supplemental Security Income (“SSI”), alleging disability as of March 1, 2010, due to degenerative disc disease, scoliosis, herniated disc (L4/L5), anxiety, depression, and arthritis. See Administrative Record (“AR”) at 13, 16, 35-36, 38-39, 52-55, 58-61, 6869, 72-73, 75, 82-85, 90-91, 99-100, 105, 110, 114, 118, 127, 132, 136, 141, 226, 243, 267, 288. The Social Security Administration (“SSA”) denied these applications on February 4, 2020. Id. at 13, 52-81, 114-21. On April 6, 2020, Plaintiff filed a request for reconsideration, and on June 17, 2020, SSA denied Plaintiff's applications upon reconsideration. Id. at 13, 82-112, 125-44. On July 28, 2020, Plaintiff filed his request for hearing. Id. at 13, 146-47. On February 25, 2021, a telephonic hearing was held before Administrative Law Judge (“ALJ”) Laura Speck Havens. AR at 13, 31-51. On April 6, 2021, the ALJ issued an unfavorable decision. Id. at 10-25. On June 7, 2021, Plaintiff requested review of the ALJ's decision by the Appeals Council, and on January 13, 2022, review was denied. Id. at 1-6, 198-200. On February 16, 2022, Plaintiff filed this cause of action. Compl. (Doc. 1).

B. Factual History

Plaintiff was ten days short of twenty-eight (28) years old at the time of the alleged onset of his disability and thirty-eight (38) years old at the time of the administrative hearing. AR at 23, 35, 52-54, 68, 82-84, 99, 185, 204, 243, 267, 288. Plaintiff completed the ninth grade and took some additional high school classes online. Id. at 23, 48, 52-53, 82-83. Prior to his alleged disability, Plaintiff worked in customer service at a bowling alley. Id. at 227, 235, 246. ...

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1. Plaintiff's Testimony

a. Administrative Hearing

Plaintiff confirmed that the last grade he finished was ninth, but indicated that he had taken some online high school classes up to approximately the eleventh grade. AR at 35. Plaintiff indicated that he was trying to get a GED but has difficulty with his attention span and drowsiness. Id . at 36. Plaintiff attributed his lack of concentration, at least in part, to his medications. Id. Plaintiff further confirmed that he worked customer service at a bowling alley in 2009 through 2010, and that he took surveys on his telephone for AmeriSpeak in 2018 which involved responding to yes-or-no questions. Id. at 36-37.

Plaintiff explained that his alleged onset date was when his back injury occurred. Id. at 37. Plaintiff testified that he spent approximately eight (8) years going to different doctors without success and wanted to return to work. AR at 37. Plaintiff also acknowledged that he “had no clue what [he] was doing[.]” Id. Plaintiff confirmed that he suffers from degenerative disc disease, arthritis, depression, and anxiety. Id. at 38.

Plaintiff testified that he lives by himself in an apartment. Id. Plaintiff estimated that he wakes up between 8:00 and 8:30 in the morning, taking his medication immediately after awakening. Id. Plaintiff testified that his pain requires him to take his medication right away, then he lays back down until approximately 9:30 or 10:00 a.m., after which he is able to get up and begin start slowly moving around. AR at 38. Plaintiff confirmed that he is able to dress and bathe himself independently, as well as perform household chores with rest periods between tasks. Id. at 38-39. Plaintiff further estimated that he averages approximately two (2) hours per day watching television. Id. at 39. Plaintiff described the television as background noise because he lacks the focus to follow a show. Id. Plaintiff also estimated spending one (1) or two (2) hours on the internet per day. Id. Plaintiff testified that he has two (2) dogs which he cares for, taking them on short walks, but he does not lift their food bags. AR at 39, 45. Plaintiff indicated that he did not have other activities aside from caring for his pets. Id. at 39-40. Plaintiff testified that he has been clean since 2012, or approximately nine (9) years at the time of the hearing. Id. at 40.

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Plaintiff further testified that he does not drive a car, having revoked his license approximately four (4) years ago due to his medications. Id. Plaintiff noted that he receives medical rides through his insurance to get to his appointments. Id . Plaintiff reported that the only things he does outside of his house are grocery shopping and occasional Sunday family dinner at his father's home. AR at 40-41. Plaintiff indicated that he walks approximately a quarter mile to the grocery store with a cart, uses a list to get exactly what he needs, and then walks home. Id. at 46. Plaintiff estimated that the entire trip takes approximately forty-five (45) minutes. Id. Plaintiff testified that he grocery shops no more than once per week. Id. at 47. Plaintiff further testified that once he returns home and puts his groceries away, he is exhausted and will take a two (2) to three (3) hour nap. Id .

Plaintiff noted that when he has pain, he has to turn up his stimulator high, which causes his legs to shake. AR at 40-41. Plaintiff indicated that he has problems with sleeping and eating, which include nausea and frequent waking due to pain. Id. at 41. Plaintiff listed his medications to include Methadone, Valium, and a prostate medication. Id. Plaintiff noted that they all cause drowsiness. Id. at 42. Plaintiff reported that he sees a doctor regarding his physical health approximately once per month and sees his mental health counselor every other week, with group meetings weekly. Id . Plaintiff estimated that he can stand for between five (5) and ten (10) minutes, and that he can sit for approximately the same amount of time. AR at 42. Plaintiff further estimated that he can lift approximately thirty (30) pounds, noting that he is able to pick his nephew up to give him a brief hug and set him back down. Id. at 42, 45. Plaintiff described his pain to include his “complete lower back, all the way through [his] hip and [his] right buttocks area, all the way down [his] right leg, through [his right knee, down through [his] calf, all the way into [his] ankle, . . . [a]nd the pain goes all the way down into [his] pinky toes and [his] other toes, to where it basically feels like [he is] walking on a broken foot[.]” Id. at 43. Plaintiff reported that he is waiting on a call from his surgeon's scheduler. Id. Plaintiff indicated that his pain was a five (5) or a six (6) on a scale of one to ten. Id .

Regarding his mental health, Plaintiff observed that without his anti-anxiety

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medication (Valium), he probably would have freaked out and not answered the telephone call from the ALJ. AR at 43-44. Plaintiff testified that his anxiety affects every aspect of his life, and he is terrified to leave his house. Id. at 44. Plaintiff noted that prior to medication, he missed most of his doctor's appointments because he could not leave the house. Id. Plaintiff confirmed that he had taken his medications that morning, and that they had partially begun working. Id. Plaintiff noted that during the hearing he was struggling with confusion and difficulty focusing. Id. at 45.

Plaintiff explained that he requires too much adjustment of his position, from standing to sitting, to be able to work, especially because it would affect his concentration. AR at 47. He described needing a physical therapy session to reduce his pain level sufficiently. Id. Without that kind of intervention, Plaintiff indicated that he would have to turn his stimulator up so high that it makes him shake to the point that he is unable to concentrate. Id. at 47-48. Plaintiff estimated that when he loses focus, it can take him anywhere from twenty (20) to forty-five (45) minutes to regain it. Id. at 48.

b. Administrative Forms

i. Work History Report

a. August 19, 2019

On November 30, 2019, Plaintiff completed a Work History Report. AR at 24649. Plaintiff listed his prior work to include customer service representative at a bowling alley from February 2009 through March 2010, and online survey taker from June through November, 2018. Id. at 246. Plaintiff described the customer service position as eight (8) hours per day for between two (2) and six (6) days per week. Id. at 247. Plaintiff indicated that he earned $7.50 per hour, and the job included cleaning and oiling bowling lanes, cleaning customer areas, and putting bowling balls away. Id. Plaintiff denied using machines, tools, or equipment; using technical knowledge or skills; or writing, completing reports, or performing similar duties. Id. Plaintiff reported that he walked or stood for approximately four (4) hours per day, and knelt, crouched, stooped, or handled, grabbed, or grasped big objects one (1) hour per day. AR at 247. Plaintiff noted that he regularly

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lifted and carried items approximately fifty (50) feet. Id. Plaintiff further reported that he would frequently lift between twelve (12) and fifteen (15) pounds, with fifteen (15) pounds being the heaviest weight that he was required to lift. Id. Plaintiff denied any supervisory responsibilities and was not a lead work or have any role in hiring or firing employees. Id.

Plaintiff described the online survey taker position as part-time-one (1) hour per day, two (2) to three (3) days per week. Id. at 248. Plaintiff reported that he earned $1,629.00 in the year that he worked in this position. AR at 248. Plaintiff denied using machines, tools, or equipment; technical knowledge or skills; or doing any writing, completing reports, or performing similar duties. Id. Plaintiff further reported that he sat for an hour each day and would write, type or handle small objects during this time. Id . Plaintiff indicated that he used his smartphone and lifting and carrying was limited to that object. Id. Plaintiff further indicated that the heaviest weight he lifted was therefore less than ten (10) pounds. Id. Plaintiff did not supervise other people in this position. Id.

b. Undated

Plaintiff completed another Work History Report. AR at 235-42. Plaintiff listed his past work in customer service at a bowling alley from February 2009 through April 2010, as well as online survey taker from January through December of 2018. Id. at 235. Plaintiff described the bowling alley customer service position as full-time-seven (7) hours per day, five (5) days per week. Id. at 236. Plaintiff reported earning $7.50 per hour, without any further information regarding the position. Id.

Plaintiff described the survey taker job as part-time-two (2) hours per day, three (3) days per week. Id. at 237. Plaintiff reported earning $135.75 per month and did not provide any further information about the position. See AR at 237.

ii. Function Report-Adult

a. December 3, 2019

On December 3, 2019, Plaintiff completed a Function Report-Adult. AR at 25058. Plaintiff reported that he lived alone in an apartment. Id. at 250. Plaintiff described the limitations of his medical conditions as follows:

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I am in constant pain. I am not able to stand or walk for a period of time. My depression and anxiety are also a reason. My medications have side effects like drowsiness but I also suffer from insomnia and have trouble sleeping because of the pain in my back.

Id. Plaintiff further described his typical day to include waking up, taking his medication, letting his dogs out, followed by washing dishes if he was not in too much pain. Id. at 251. Plaintiff noted that he tries to stay awake, despite the drowsiness his medications cause. Id. Plaintiff reported that cleaning, laundry, pet care, and similar tasks require taking breaks. AR at 251. Plaintiff also reported that some days he walks to the grocery store “down the street,” but he has to walk slowly and take breaks along the way. Id. Plaintiff also indicated that he orders groceries, especially heavy items, online. Id.

Plaintiff stated that he cares for pets, including feeding them, letting them out for potty breaks, and walking them as much as possible. Id. Plaintiff denied having help with these care tasks. Id. Plaintiff reported that prior to the onset of his conditions, he was able to work, drive, perform housekeeping tasks, and participate in social activities. AR at 251. Plaintiff indicated that he is very limited now. Id. Plaintiff described his conditions as affecting his sleep, and reported that he only sleeps about one (1) to two (2) hours at a time because the pain wakes him up often. Id. Plaintiff reported issues with personal care, including having to sit down to dress and take a shower, keeping his hair very short, only shaving every four (4) days unless he has an appointment, and some difficulty using the toilet due to the location of his implant. Id. at 252. Plaintiff denied needing reminders to take care of his personal care needs or to take medication. Id.

Plaintiff indicated that he prepares his own meals, which are mostly sandwiches because they are easy to make. AR at 252. Plaintiff also noted that he grazes on snacks, as well. Id. Plaintiff reported that he prepares simple foods daily and it takes him a few minutes. Id. Plaintiff stated that he uses a microwave for frozen meals, but does not cook using a stove or oven. Id. Plaintiff confirmed that he does all his own cleaning and laundry, although he can only do a little at a time, and his landlord is responsible for all repairs. Id. at 253. Plaintiff indicated that because these tasks take him so long to complete, he has to

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do them constantly. AR at 253. Plaintiff reported taking his dogs outside frequently. Id. Plaintiff also reported that he is able to go out alone and can walk, ride in a car, and use public transportation. Id. Plaintiff denied driving, and stated that he does not have a driver's license because of the side effects of his medications. Id. Plaintiff reported that he shops for groceries, hygiene products, clothes, and cleaning products on the computer. Id. Plaintiff estimated that he shops once every one (1) to two (2) weeks, and it takes him about an hour. AR at 253.

Plaintiff confirmed that he is able to pay bills and count change, but he has never had a checking or savings account, so only knows how to use money orders. Id. at 254. Plaintiff noted that his ability to handle money has changed since the onset of his condition, and now his father pays his bills online. Id. Plaintiff listed his hobbies and interests to include watching television and movies, and playing video games. Id. Plaintiff indicated that he does these things daily. Id. Prior to his illness, Plaintiff enjoyed hiking and spending time outdoors, but reported that he is not longer able to do these things. AR at 254. Plaintiff confirmed that he spends time with others, including Sunday dinner with his father and Facebook friends on the computer. Id. Plaintiff indicated that Sunday dinner occurs weekly, and he uses Facebook once or twice per week. Id. Plaintiff reported regularly attending counseling once or twice per week, and going to his father's house weekly. Id. Plaintiff denied needing reminders or anyone to accompany him for these activities. Id. Plaintiff also denied any problems with family, but acknowledged occasional problems getting along with friends. AR at 255. Plaintiff indicated that he tries to avoid old friends who are still using drugs or drinking. Id.

Plaintiff reported that his conditions affect his ability to lift, squat, bend, stand, walk, sit, kneel, remember, and concentrate. Id. Plaintiff described “[everything is affected by [his] pain or medication side effects.” Id. Plaintiff reported that he is left handed. Id. Plaintiff further reported that he can walk about a quarter of a mile before needing to stop and rest for between ten (10) to thirty (30) minutes. AR at 255. Plaintiff estimated that he is able to pay attention for about five (5) to ten (10) minutes. Id. Plaintiff confirmed that

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he is able to finish what he starts and follow written and spoken instructions. Id. Plaintiff denied having problems with authority figures, except bosses occasionally. Id. at 256. Plaintiff has never been fired or laid off from a job due to issues with others. Id. Plaintiff reported that he does not handle stress or changes in routine very well. AR at 256. Plaintiff opined that he thinks he might have some post-traumatic stress disorder after being beat up, as well as from a charger blowing up. Id. Plaintiff wears glasses, which were prescribed approximately seven (7) years ago. Id. Plaintiff's medications include Methadone and Diazepam. Id. at 257.

a. May 4, 2020

On May 4, 2020, Plaintiff completed a Function Report-Adult. AR at 278-86. Plaintiff reported that he lived alone in an apartment. Id. at 278. Plaintiff described the limitations of his medical conditions as follows:

I am in constant pain all the time from my shoulder all down my back through my hips down legs into my knees all the way to my foot. It makes it to where I can't walk or stand or really anything for more than 10-15 minutes at a time even affects sitting and can only do for so long and my meds have high side effects of drowsiness but also suffer from insomnia and have trouble sleeping due to pain & my anxiety and depression that also make it pretty much impossible to work.

Id. Plaintiff further described his typical day to include waking up, taking his dogs out for a small walk after taking his medication, followed by cleaning up or other household chores. Id. at 280. Plaintiff noted that he needs to take breaks approximately every fifteen (15) minutes due to pain. Id. Plaintiff indicated that he orders anything greater than ten (10) pounds online for delivery. AR at 280. Plaintiff reported that he cares for his dogs, feeding and playing with them, although he sits down to play. Id. Plaintiff also indicated that when he takes them for walks, they do not go out for more than fifteen (15) minutes. Id. Plaintiff stated that sometimes his neighbor will help him with walking his dogs or carrying heavy items in, and his brother or father will pick things up for him. Id. Plaintiff described being able to work, walk, jump, squat, drive, keep house, and participate in social activities prior to the onset of his conditions. Id. Plaintiff reported that pain, medications,

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and stimulating negatively impact his sleep. AR at 280. Plaintiff described waking up frequently, due to pain or the vibration of his stimulator. Id. Plaintiff further described that his conditions cause him to need to sit while getting dress, sometimes sit while bathing, keep his hair very short, neglect shaving, limit himself to fast and easy to prepare meals, and need to sit while using the toilet. Id. at 279. Plaintiff reported needing reminders to take care of personal needs because he sometimes has several doctor appointments or other items scheduled. Id. Plaintiff also noted that he needs reminders to take his anxiety medication, because sometimes he feels fine. Id.

Plaintiff indicated that he prepares his own meals, which are mostly sandwiches or other fast and easy items, because they are easy to make. AR at 279. Plaintiff also noted that he grazes on snacks, as well. Id. Plaintiff reported that he prepares simple foods daily and it takes him a few minutes. Id. Plaintiff stated that he uses a toaster oven or makes things that do not require cooking. Id. Plaintiff further explained that he loses his appetite when he tries to cook something that takes longer to cook. Id. Plaintiff confirmed that he cleans and does laundry, but major repairs are taken care of by his landlord. AR at 281. Plaintiff indicated that it takes him the entire week to keep up with household chores, at which point he has to start over again. Id. Plaintiff also reported that he requires encouragement, because otherwise he does not feel like doing chores. Id. Plaintiff denied going outside very much, other than taking his dogs out for a walk. Id. Plaintiff reported that when he goes out he walks, rides in a car, or uses public transportation, Uber, or medical transport. Id. Plaintiff indicated that although he can go out alone, sometimes his anxiety requires him to have his service dog with him. AR at 281. Plaintiff denied driving and explained that his pain, as well as side effects from medication, make driving unsafe. Id. Plaintiff reported that he shops for food, cleaning supplies, hygiene products, pet food and treats, and clothes, online and in stores. Id. Plaintiff further reported that he shops once or twice per week anywhere from one (1) to two (2) hours, depending upon whether it was in the store or on the computer. Id.

Plaintiff indicated that he is able to pay bills, count change, and use a checkbook or

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money orders, but could not handle a savings account. Id. at 282. Plaintiff noted that he was uncertain about his abilities, because his father has been paying his bills for years. AR at 282. Plaintiff reported that his ability to handle money has changed since the onset of his conditions, because his father did not used to have to pay his bills. Id.

Plaintiff listed his hobbies and interests to include video games and watching television or movies. Id. Plaintiff indicated that he does these activities daily. Id. Plaintiff reported that prior to the onset of his conditions, he enjoyed walking or hiking, but can no longer do this activity because of pain. Id. Plaintiff described his social activities to include Sunday dinner at his father's house and “a little Facebook.” AR at 282. Plaintiff indicated that he has dinner at his father's house every Sunday and uses Facebook approximately three (3) times per week. Id. Plaintiff also reported that he attends counseling twice per week. Id. Plaintiff reiterated that some days he needs his service dog to accompany him. Id.

Plaintiff denied having problems with family members, but expressed conflict with friends or bosses/supervisors who “think they have more power than they do.” Id. at 283. Plaintiff indicated that he tries to avoid friends or others that are still using drugs or other substances in an effort to maintain his sobriety. AR at 283. Plaintiff reported that his conditions affect his ability to lift, squat, bend, stand, reach, walk, sit, kneel, climb stairs, remember, complete tasks, concentrate, understand, follow instructions, use his hands, and get along with others. Id. Plaintiff further reported that he cannot lift more than ten (10) pounds, is limited in his ability to sit, stand, or walk to short periods, and his medications affect his memory and concentration. Id. Plaintiff noted that he is left-handed. Id. Plaintiff estimated that he can walk between a quarter to a half mile before needing to rest for between fifteen (15) and forty-five (45) minutes. Id. Plaintiff described being unable to finish what he starts and can generally follow written and spoken instructions. AR at 283. Plaintiff reiterated that he does not get along well with bosses, but otherwise does not have issues with authority figures, and indicated that he has never been fired or laid off because of an inability to get along with others. Id. at 284. Plaintiff reported that he does not handle

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stress or changes in routine well. Id. Plaintiff described being “jumped not long ago” and opined that he has developed Post-Traumatic Stress Disorder (“PTSD”) and manic depressive disorder as a result. Id. Plaintiff indicated that he wears glasses, which were prescribed approximately seven (7) years ago, and a brace for a broken wrist which he has had for about six (6) weeks. Id. Plaintiff expressed frustration with the social security process and lack of support. AR at 286.

2. Vocational Expert Sandra Moore Fioretti's Testimony

Ms. Fioretti testified as a vocational expert at the administrative hearing. AR at 13, 48-50, 185-87, 309. Because the ALJ found that Plaintiff did not have any past relevant work, Ms. Fioretti did not describe any of his prior positions. Id. at 48. The ALJ asked Ms. Fioretti to consider a hypothetical individual of Plaintiff's age, education, and without prior relevant work; who could sit, stand, and walk for six (6) hours out of an eight (8) hour day; occasionally lift and carry twenty (20) pounds and frequently ten (10) pounds; never climb ladders or crawl; occasionally balance, stoop, kneel, and crouch; occasionally be exposed to heights, moving machinery, and temperature extremes; can understand, remember, and carry out simple job instructions only; and only have occasional interaction with the public. Id. at 48-49. Ms. Fioretti opined that such an individual would be employable as an assembler, electrical accessories, Dictionary of Occupational Titles (“DOT”) number 729.687-010, unskilled, with a Specific Vocational Preparation (“SVP”) of 2, light exertional level, and of which there are approximately 99,000 positions in the national economy. Id . Ms. Fioretti further opined that such an individual would be able to perform the job of inspector, hand packager, DOT number 559.687-074, light exertional level, unskilled, with an SVP of 2, and approximately 27,000 positions in the national economy. Id. Ms. Fioretti further opined that such an individual would be employable as a bench assembler, DOT number 706.684-042, light exertional level, unskilled, with an SVP of 2, and of which there are approximately 36,000 jobs in the national economy. AR at 49. Ms. Fioretti confirmed that this testimony was consistent with the DOT. Id.

Ms. Fioretti considered the same hypothetical individual, but who required more

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frequent rest breaks and frequent changes of position due to spinal cord stimulator use, necessitating fifteen (15) minute rest breaks every hour. Id. at 49-50. Ms. Fioretti opined that such an individual would exceed normal rest breaks and observed that there is not a lot of flexibility in unskilled work. Id. at 50. Ms. Fioretti further opined that there would not be any jobs in the national economy for such an individual. Id. Ms. Fioretti also opined that occasional public positions are production-oriented and that in her experience seven (7) to ten (10) percent would be the maximum someone could be off task, assuming that they would still be able to maintain an acceptable level of productivity. AR at 50.

3. Lay Witness Testimony

On December 3, 2019, Plaintiff's father, Edward Sicurello, completed a Function Report-Adult-Third Party on behalf of Plaintiff. AR at 259-66. Mr. Sicurello reported that he has known Plaintiff for his entire life and they spend a few hours per week together having dinner at his home. Id. at 259. Mr. Sicurello indicated that Plaintiff lived alone in an apartment. Id. Mr. Sicurello described his understanding of Plaintiff's daily activities to include going to counseling twice per week, taking care of his pets, and doing his own cleaning, laundry, food shopping, and making his own meals. Id. Mr. Sicurello confirmed that Plaintiff cared for his pets. Id. at 260. Mr. Sicurello noted that prior to the onset of Plaintiff's conditions he was “much more self-sufficient.” AR at 260. Mr. Sicurello further noted that Plaintiff had told him that “has a lot of trouble sleeping.” Id. Mr. Sicurello indicated that Plaintiff did not having any trouble with personal care. Id. Mr. Sicurello also indicated that Plaintiff does not need help remembering to take his medication. Id. at 261.

Mr. Sicurello confirmed that Plaintiff can prepare his own meals, which include sandwiches and microwavable meals. Id. Mr. Sicurello reported that Plaintiff prepares meals daily. AR at 261. Mr. Sicurello noted that Plaintiff does his own cleaning and laundry, but his landlord makes repairs. Id. Mr. Sicurello indicated that Plaintiff does not need encouragement to complete these tasks. Id. Mr. Sicurello reported that Plaintiff goes out regularly, and walks, rides in a car, or uses public transportation. Id. at 262. Mr.

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Sicurello confirmed that Plaintiff is able to go out alone. Id. Mr. Sicurello further reported that Plaintiff does not have a license due to his pain. AR at 262. Mr. Sicurello noted that Plaintiff is able to shop for basic necessities in stores and by computer. Id. Mr. Sicurello also reported that Plaintiff is able to pay bills, count change, and use money orders, but noted that Plaintiff did not have a savings account and that Mr. Sicurello had been paying Plaintiff's bills. Id.

Mr. Sicurello observed that Plaintiff had limited hobbies or interests, and his main activities included watching television or spending time on the computer. Id. at 263. Mr. Sicurello further observed that since the onset of Plaintiff's conditions, his quality of life has decreased. Id. Mr. Sicurello noted that Plaintiff spends time with him for Sunday dinner, talks to his brother on the phone, occasionally sees his mom, and attends counseling once or twice per week. AR at 263. Mr. Sicurello denied that Plaintiff needs someone to accompany him during outings. Id. Mr. Sicurello did not indicate any problems that Plaintiff had getting along with others, but noted that he is generally limited to his apartment since the onset of his conditions. Id. at 264.

Mr. Sicurello reported that Plaintiff's conditions affect his ability to lift, squat, bend, stand, reach, walk, sit, kneel, remember, and concentrate. Id. Mr. Sicurello observed that any activity involving Plaintiff's back causes pain, and his memory and concentration issues cause frustration. Id. Mr. Sicurello noted that Plaintiff is left-handed. AR at 264. Mr. Sicurello estimated that Plaintiff would require five (5) to ten (10) minute rest breaks when walking. Id. Mr. Sicurello did not indicate any marked issues with Plaintiff's ability to finish what he starts or follow instructions. Id. Mr. Sicurello opined that Plaintiff's ability to get along with authority figures has improved. Id. at 265. Mr. Sicurello also acknowledged that Plaintiff has difficulty handling stress and changes in routine. Id. Mr. Sicurello confirmed that Plaintiff wears glasses. Id. ... ... ...

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4. Plaintiff's Medical Records

a. Treatment records

On March 14, 2012, Plaintiff was seen by Todd Harms, LPN BHT at Behavioral Awareness Center. AR at 398-99. Treatment records described Plaintiff as a thirty (30) year old male with a two (2) year history of opiate abuse, specifically heroin. Id. at 398. LPN Harms noted that Plaintiff was in withdrawal. Id.

On March 6, 2013, Plaintiff was evaluated by LPN Harms at Behavioral Awareness Center. Id. at 400. Treatment records reflect Plaintiff was receiving methadone treatment. Id. LPN Harms' examination was unremarkable. Id.

On February 25, 2014, Plaintiff was seen by R. Spencer, LPN BHT at Behavioral Awareness Center. AR at 401. Treatment records reflect Plaintiff was receiving methadone treatment. Id. LPN Spencer's examination of Plaintiff was unremarkable. Id.

On April 24, 2014, Plaintiff was seen by Waheed Bhatti, M.D. at El Rio Health Internal Medicine regarding his anxiety and back pain. Id. at 367-72. Plaintiff reported compulsive thoughts, difficulty falling and staying asleep, and excessive worry, and indicated that “functioning [w]as somewhat difficult.” Id. at 367. Dr. Bhatti's review of Plaintiff's systems was generally unremarkable, except for back and joint pain, difficulty initiating and maintaining sleep, excessive worry, compulsive thoughts or behaviors, insomnia, and anxiety. AR at 368-69. Dr. Bhatti's physical examination of Plaintiff was similarly unremarkable, but noted moderate musculoskeletal pain with motion. Id. at 36971.

On July 18, 2014, Plaintiff saw Scott Goorman, M.D. at Tucson Orthopaedic Institute for an evaluation of his low back and right leg pain. Id. at 394-96. Plaintiff reported that the radiating leg pain is often worse that his back pain, and rated the pain between five (5) and ten (10) out of ten (10). Id. at 394. Plaintiff further reported that

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cortisone shots and a chiropractor had not helped. Id. Dr. Goorman noted that Plaintiff had lost his insurance several years prior. AR at 394. Dr. Goorman's review of Plaintiff's systems was unremarkable. Id. at 395. Dr. Goorman's physical examination was broadly unremarkable, but noted a slight decrease in Plaintiff's right ankle compared to the left, decreased sensation to light touch in the lateral aspect of his right foot, downgoing Babinski bilaterally, and straight leg testing positive on the right but negative on the left. Id. Dr. Goorman assessed lumbago, lumbar radiculopathy, and lumbar disc degeneration, and ordered additional imaging. Id. at 396.

On October 9, 2014, Plaintiff saw Elizabeth Thomas, N.P. at Tucson Orthopaedic Institute for an evaluation of his leg and back pain. Id. at 391-93. Plaintiff reported that his “pain radiates into the right buttock and right lower extremities with numbness to the toes.” AR at 391. Plaintiff described his symptoms as “typically exacerbated by sitting, standing, ambulating, lying down, and especially with sleeping.” Id. Plaintiff further reported that physical therapy was not helpful. Id. NP Thomas's review of Plaintiff's symptoms was unremarkable. Id. Similarly, her physical examination was generally unremarkable, though she noted Plaintiff's antalgic gait and limp favoring his right lower extremity. Id. On the same date, Jeffrey Baron, M.D. at Tucson Orthopaedic Institute noted that he had discussed Plaintiff's care with the Nurse Practitioner. AR at 390. Dr. Baron indicated that he had spoken with Plaintiff and his father “at length regarding his chronic low back pain.” Id. Dr. Baron noted that Plaintiff's “lumbar MRI date 08/14/2014 demonstrates degenerative changes at the lumbosacral segment[,] [but] [Dr. Baron] s[aw] no surgical indication based on his presentation and imaging studies.” Id. On October 12, 2014, Plaintiff saw Soliman Yaqub, M.D. at El Rio Health Family Practice regarding his musculoskeletal pain and drug use. Id. at 363-66. Treatment records reflect that Plaintiff had been clean for three (3) years. Id. at 363. Dr. Yaqub's review of Plaintiff's systems, as well as physical examination, was unremarkable. AR at 364-65. Plaintiff reported his pain as a three (3) out of ten (10). Id. at 365. Treatment records reflect that Plaintiff's pain was well controlled with medications. Id. On October 21, 2014, Plaintiff saw Brian P.

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Callahan, M.D. at the Center for Neurosciences regarding lumbar radicular pain at ¶ 5-S1. Id. at 351-52. Dr. Callahan observed that Plaintiff had chronic back and leg pain, which was nonfocal on examination. Id. at 351. Dr. Callahan noted that although Magnetic Resonance Imaging (“MRI”) showed degenerative disc disease, it did not show nerve root compression. AR at 351. Dr. Callahan further noted that Plaintiff's MRI “does show a very small disc protrusion to the right at ¶ 5-S1[;] [h]owever, it is smaller than it was in 2010.” Id. Dr. Callahan referred Plaintiff to pain management to try epidural steroid injections. Id.

On December 4, 2014, Plaintiff saw Richard A. Chase, M.D. regarding his back and leg pain and consultation regarding possible epidural injections. Id. at 347-50. Plaintiff reported chronic back pain for the past five (5) years, noting that it was not as bad as it was initially, but “he still has pain in the posterior right leg and lower back.” Id. at 349. Plaintiff further reported that his leg gives out while walking or standing. AR at 349. Plaintiff noted that he had done some home exercises but denied having formal physical therapy in the past. Id. Dr. Chase assessed lumbago, degeneration of lumbar or lumbosacral intervertebral disc, lumbar radiculitis, displacement of lumbar intervertebral disc without myelopathy, and lumbar spondylosis. Id. at 347, 350. Dr. Chase's plan included “[a] trial of targeted, multilevel lumbar transforaminal epidural steroid injections for lumbar spondylosis, disc herniation in radiating leg pain.” Id. at 347, 350. Dr. Chase performed transforaminal epidural injection at right L4, L5, and S1. Id. at 347.

On January 13, 2015, Plaintiff returned to Dr. Chase for a second round of targeted lumbar injections. AR at 345-46. Plaintiff reported “a definite meaningful degree of symptom improvement” and was hopeful for further improvement going forward. Id. at 345. Dr. Chase performed transforaminal epidural injections at right L4, L5, and S1 without complication. Id.

On February 16, 2015, Plaintiff again returned to Dr. Chase for continued targeted lumbar injection therapy. Id. at 343-44. Plaintiff reported significant improvement after the first round of injections; however, he reported no further change after the second set.

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Id. at 343. Dr. Chase performed transforaminal epidural injections at right L4, L5, and S1 without complication. AR at 343. On February 20, 2015, Plaintiff was seen by R. Wiley, LPN BHT at Behavioral Awareness Center. Id. at 402. LPN Wiley's examination of Plaintiff was unremarkable. Id. Treatment records reflect that Plaintiff continued methadone maintenance. Id. Records also noted Plaintiff had “[c]hronic back pain from a crushed disc (L5) in back as result of car accident in 2009.” Id.

On June 3, 2015, Plaintiff saw Dr. Chase for additional epidural injections. AR at 341-42. Dr. Chase performed transforaminal epidural injections at ¶ 5 and S1, bilaterally, without complication. Id. at 341.

On July 9, 2015, Plaintiff followed-up with Dr. Chase for a second series of targeted lumbar injections at ¶ 5 and S1. Id. at 339-40. Plaintiff reported doing progressively worse and noted that he “is having increasing difficulty all around including both the low back with radiation into both lower extremities[,]” as well as having a difficult time bending over. Id. at 339. Dr. Chase performed the transforaminal epidural injections at ¶ 5 and S1, bilaterally, without complication. Id. at 339-40. On July 31, 2015, Plaintiff underwent an MRI of his lumbar spine. AR at 355. Richard W. Lucio, II, M.D. reviewed the images, which were compared to Plaintiff's August 2014 MRI. Id. Dr. Lucio's impression included a “L5-S1 stable right-sided disc protrusion and mild right foraminal stenosis[,]” as well as “[s]table lumbar degenerative changes.” Id.

On August 12, 2015, Plaintiff saw Dr. Chase for a third series of targeted lumbar injections. Id. at 337-38. Plaintiff reported “making definite meaningful forward progress at this point.” Id. at 337. Plaintiff further reported “undergoing regular physical therapy for several weeks[.]” AR at 337. Treatment records reflect that Plaintiff's “focus is increasingly becoming the lumbar region itself as the lower extremity aspects are resolving.” Id. Dr. Chase discussed potential treatment with radiofrequency treatment. Id. Dr. Chase performed transforaminal epidural injections at ¶ 5 and S1, bilaterally, without complication. Id. at 337-38.

On September 4, 2015, Plaintiff returned to Dr. Chase for a lumbar medial branch

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block. Id. at 335-36. Dr. Chase performed the block on the right at ¶ 2, L3, L4, and L5, without complication. AR at 335-36. On September 16, 2015, Plaintiff saw Dr. Chase for a second lumbar medial branch block. Id. at 333-34. Plaintiff reported no improvement and endorsed feeling worse the day of the previous block. Id. at 333. Treatment records indicate that Plaintiff had a similar experience with epidural injections. Id. Dr. Chase recommended that if Plaintiff did not have improvement following the block, he should discontinue the intervention and remain in physical therapy. Id. Dr. Chase performed a lumbar medial branch block on the right at ¶ 2, L3, L4, and L5, without complication. AR at 333-34.

On October 15, 2015, Plaintiff returned to Dr. Chase for lumbar radiofrequency treatment on the right side. Id. at 331-32. Dr. Chase assessed low back pain and lumbar facet arthropathy. Id. Dr. Chase performed a “[l]umbar medial branch radiofrequency neurotomy at levels right L2, L3, L4 and L5” on Plaintiff. Id. On October 22, 2015, Plaintiff again saw Dr. Chase regarding his low back pain. Id. at 329-30. Dr. Chase assessed low back pain and lumbar facet arthropathy. AR at 329. Plaintiff requested leftsided lumbar radiofrequency therapy. Id. at 329. Plaintiff reported doing very well after treatment on the right. Id. Dr. Chase performed “[l]umbar medial branch radiofrequency neurotomy at levels left L2, L3, L4 and L5[.]” Id.

On December 17, 2015, Plaintiff followed up with Dr. Chase regarding back and right leg pain. Id. at 327-28, 388-89. Plaintiff “return[ed] for recheck after radiofrequency ablation treatment of the lumbar facet joints 8 weeks [prior.]” AR at 327, 388. Plaintiff reported that he had improvement on his left side, but continued to have right lower back pain that radiated down the posterior leg. Id. Plaintiff further reported that his pain was worse with bending forward and walking and that epidural injections did not help. Id. Treatment records indicate that Plaintiff's pain continued to be moderate to severe, and “[h]is MRI showed a right-sided disc protrusion at ¶ 5-S1 from July of this year.” Id. Dr. Chase noted an antalgic gait and negative facet loading maneuvers to the left, but positive on the right. Id. at 327, 388. Dr. Chase assessed lumbar disc herniation with radiculopathy

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and lumbar spondylosis. AR at 327, 388. Dr. Chase opined that Plaintiff's “right lower back and leg pain is related to his disc herniation on the right.” Id. Dr. Chase referred Plaintiff back to Dr. Callahan for a consultation regarding spinal cord stimulation. Id.

On January 28, 2016, Plaintiff returned to Dr. Callahan at the Center for Neurosciences following injections. Id. at 325-26, 386-87. Treatment records indicate that Plaintiff's pain was worse following injections and radiofrequency ablation. Id. at 325, 386. Plaintiff reported that the pain down his right leg was worse, he was having more paresthesias in his right leg, as well as difficulty walking and sleeping. AR at 325, 386. Dr. Callahan assessed lumbosacral neuritis and lumbar disc herniation with radiculopathy. Id. Dr. Callahan ordered additional imaging. Id.

On February 11, 2016, Plaintiff underwent an MRI of his lumbar spine without contrast. Id. at 353-54, 379. Nicholas Fraley, M.D. read the MRI and compared it to Plaintiff's previous imaging on July 31, 2015. Id. Dr. Fraley's impressions included “[s]table chronic small broad-based right paracentral and foraminal disc protrusion at ¶ 5-S1 without direct nerve compression or spinal stenosis[,] [and] [m]ild right foraminal narrowing[,]” as well as a “[w]idely patent lumbar spinal canal[,] [with] [n]o new disc herniations.” AR at 354, 379. On February 12, 2016, Plaintiff saw LPN Wiley at Behavioral Awareness Center. Id. at 403. LPN Wiley's examination of Plaintiff was unremarkable. Id. Plaintiff's treatment plan included continued methadone maintenance. Id. On February 19, 2016, Plaintiff saw Richard A. Chase, M.D. regarding back and right leg pain. Id. at 323-24. Treatment records indicate that Plaintiff had “chronic back and leg pain that did not respond to epidural injections or radial frequency treatments in the lumbar spine[.]” Id. at 323. Plaintiff described his pain as five (5) out of ten (10), “located in the right lower back and radiates down his posterior lateral thigh and leg[,]” worse with movements and walking. AR at 323. Upon examination, Dr. Chase noted decreased range of motion, negative straight leg test, severe diffuse tenderness to palpation in the lumbar paraspinal muscles, and antalgic gait. Id. Dr. Chase assessed lumbar radiculopathy, lumbar disc disease with radiculopathy, and chronic pain. Id. at 324. Dr. Chase opined

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that Plaintiff “should be an excellent candidate for trial of neuromodulation via spinal cord stimulation therapy.” Id.

On September 16, 2016, Plaintiff saw Dr. Chase for a trial spinal cord stimulator placement. Id. at 321-22. Dr. Chase's assessments included low back pain, other spondylosis with radiculopathy, lumbar region, and chronic pain syndrome. AR at 321. Dr. Chase placed the trial spinal cord stimulator without complication. Id. at 321-22. On September 20, 2016, Plaintiff returned to Dr. Chase for removal of the spinal cord stimulator electrodes after a trial of spinal stimulation. Id. at 319-20. Treatment records indicate that Plaintiff was “very pleased with the results[,] [and] . . . had 100% pain relief in his lower back and right leg.” Id. at 319. Dr. Chase did not note any complications. Id. On September 22, 2016, Plaintiff saw Brian P. Callahan, M.D. at the Center for Neurosciences following placement of a trial spinal cord stimulator. AR at 317-18, 38384. Treatment records indicate that Plaintiff “did exceptionally well.” Id. at 317, 383. Plaintiff reported that “he was able to move and sleep better[,] [and] [h]is pain was 80% better.” Id. Plaintiff expressed interest in a permanent placement. Id. Dr. Callahan noted Plaintiff's chronic back and leg pain, his positive spinal cord stimulator trial, and that a permanent placement would be reasonable. Id. On September 27, 2016, Plaintiff had an MRI of his thoracic spine. AR at 356, 359-60. Taylor Chen, M.D. reviewed Plaintiff images, which were unremarkable. Id. at 356, 359. Dr. Chen's impression noted “[alignment within normal limits” and “[m]ild multilevel ridging[,] [and] [n]o significant central canal stenosis.” Id.

On October 7, 2016, Plaintiff underwent a “[t]horacic laminotomy with placement of epidural dorsal column stimulator paddle” and “[placement of rechargeable Boston Scientific pulse generator.” Id. at 357-58, 762-66. Dr. Callahan performed the procedure which was without incident. Id. at 357-58. On October 20, 2016, Plaintiff followed up with Dr. Callahan after placement of his spinal cord stimulator. AR at 315-16, 381-82. Dr. Callahan noted that Plaintiff was doing “very well” and that his pain had improved significantly. Id. at 315, 381. Notes indicate that Plaintiff was “pleased with the results.”

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Id.

On February 10, 2017, Plaintiff was seen by L. White, RN at Behavioral Awareness Center. Id. at 404. Nurse White's examination of Plaintiff was unremarkable. Id. Records indicate Plaintiff was to continue methadone maintenance. Id.

On April 29, 2017, Plaintiff underwent an x-ray of his right foot and ankle due to an injury while walking. AR at 373-77. Scott J. McIntyre, M.D. reviewed Plaintiff's imaging, and his impression noted a “[l]inear density along the lateral aspect of the distal right calcaneus concerning for an avulsion fracture.” Id. at 374, 377.

On February 16, 2018, Plaintiff saw N. Enriquez at Behavioral Awareness Center. Id. at 405. Plaintiff's examination was unremarkable, and it was recommended that he continue his current methadone maintenance. Id.

On February 13, 2019, Plaintiff was seen by G. Gastelum, LPN BHT at Behavioral Awareness Center. Id. at 406. LPN Gastelum's examination of Plaintiff was unremarkable. AR at 406. Plaintiff's treatment plan directed continued methadone maintenance. Id.

On February 25, 2020, Plaintiff was seen by G. Jimenez, LPN BHT at Behavioral Awareness Center. Id. at 520, 542. LPN Jimenez's examination of Plaintiff was unremarkable. Id. Plaintiff's treatment plan directed continued methadone maintenance. Id.

On March 27, 2020, Plaintiff was seen by Shawn Siqueiros, FNP at El Rio Health to establish care and for his musculoskeletal pain. AR at 468-77, 494-503. Plaintiff reported joint pain and limited range of motion in his wrist. Id. at 474, 500. Plaintiff described sleep walking one night and that his wrist was overextended upward when he woke up. Id. NP Siqueiros's review of Plaintiff's systems was broadly unremarkable, but noted fatigue, allergies, arthritis, edema in his ankles, urinary frequency, cold intolerance, anxiety, and back pain, as well as joint pain and tenderness. Id. at 475-76, 501-502. NP Siqueiros's physical examination was generally unremarkable but noted decreased strength in Plaintiff's right foot and ankle on extension, weakness in his lower extremities with

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flexion and extension, and pain and weakness in his left wrist. Id. at 470, 476-77, 496, 502-503. NP Siqueiros also noted that Plaintiff “was spasmic during exam[,]” and Plaintiff reported that this was due to his spinal cord stimulator. AR at 470, 476, 496, 502. On March 30, 2020, Plaintiff had x-rays of his right foot due to pain. Id. at 462, 488. Donald Mar, M.D. read the images and compared them with August 23, 2018, radiographs. Id. Dr. Mar found a normal right foot. Id. On the same date, Plaintiff had x-rays of his left wrist due to pain. Id. at 463, 489. Dr. Mar read these radiographs, as well, and compared them to February 7, 2011, films. AR at 463, 486. Dr. Mar's impression was a nondisplaced distal radial fracture. Id. Also on the same date, Plaintiff was seen by A. Mark Braunstein, M.D. at Tucson Orthopaedic Institute regarding his left wrist pain. Id. at 484-85, 510-11, 517-18. Plaintiff reported his date of injury as March 15, 2020. Id. at 484, 510, 517. Dr. Braunstein's physical examination of Plaintiff demonstrated tenderness to palpation of the left distal radius. Id. Dr. Braunstein recommended anti-inflammatory medications and full-time bracing, as well as home exercises. AR at 485, 511, 518.

On April 14, 2020, Plaintiff followed-up with Dr. Braunstein regarding his left wrist pain. Id. at 482-83, 508-509, 515-16. Dr. Braunstein's physical examination of Plaintiff was unremarkable. Id. Dr. Braunstein directed Plaintiff to continue wearing his cockup wrist brace for support and comfort, as well as to perform home exercises to keep his fingers and wrist moving to minimize stiffness and edema. Id. at 483, 509, 516. On April 24, 2020, Plaintiff had a telehealth visit with Cynthia Carrillo, M.D. at El Rio Health to establish care and follow up on foot, knee, and wrist pain. Id. at 464-67, 490-93. Dr. Carrillo's review of Plaintiff's system was generally unremarkable, but noted joint pain and popping. AR at 466, 492. On April 30, 2020, Plaintiff had x-rays of his knees due to pain in his right knee. Id. at 461, 487. Laurence Hanelin, M.D. read the images and found “no evidence of an acute or destructive process[,] . . . [and] no arthritic changes.” Id. Dr. Hanelin's impression was a normal anteroposterior view of the knees. Id.

On May 5, 2020, Plaintiff followed up with Dr. Braunstein at Tucson Orthopaedic Institute regarding the fracture of his distal radius. Id. at 478-81, 504-507, 513-14. Dr.

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Braunstein's examination of Plaintiff was generally unremarkable. AR at 478-81, 504507, 513-14. Dr. Braunstein released Plaintiff to normal activity without restrictions and advised that he could discontinue use of his wrist brace. Id. at 479, 481, 514. On May 12, 2020, Plaintiff saw Jamil Loman, PT for an initial evaluation at Athletico Physical Therapy regarding the pain in his knees. Id. at 617-19, 646-48. Plaintiff reported “[l]ong standing knee pain that have limited his walking distances for several years.” Id. at 617, 646. Mr. Loman assessed bilateral “knee pain consistent with patellofemoral pain with stiff/tight hamstrings, rectus femoris, [tensor fascia latae/iliotibial band] and decreased quad and hip strength.” Id. Over the next approximately seven (7) weeks, Plaintiff received fifteen physical therapy treatments for his knee pain. See AR at 584-619, 734-38, 741-46.

On June 26, 2020, Plaintiff was seen by Eric P. Anctil, M.D. at Tucson Orthopaedic Institute regarding his right foot pain. Id. at 729-31. Plaintiff complained of localized pain on the lateral side of his right foot and the fifth toe. Id. at 729. Plaintiff reported that the pain started approximately two (2) years prior, without apparent cause. Id. Dr. Anctil's examination was unremarkable. Id. at 729-30. Dr. Anctil noted that Plaintiff walked without a limp. AR at 730. Imaging studies did not reveal any indication for pain at the fifth toe. Id. Dr. Anctil prescribed Voltaren gel to improve pain management. Id. On June 29, 2020, Mr. Loman noted moderate improvement in Plaintiff's quad and hip strength, as well as mild improvement in his pain, but observed that right ankle pain and swelling was likely limiting progress. Id. at 584-85, 586, 641, 643, 732. Mr. Loman further noted that Plaintiff's bilateral knee pain persisted. Id.

On July 24, 2020, Plaintiff saw Dr. Carrillo at El Rio Health regarding swelling in his leg and moderately severe left wrist pain. AR at 623-26, 687-90. Dr. Carrillo's review of Plaintiff's systems was unremarkable beyond the lower extremity swelling and wrist pain and weakness. Id. at 625, 689. Dr. Carrillo's physical examination was unremarkable. Id.

On August 6, 2020, Plaintiff was seen by Luis Leon, M.D. at Pima Heart and Vascular for an initial consult regarding his bilateral lower extremity pain and swelling.

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Id. at 532-34, 722-24. Plaintiff reported pain affecting his lower extremities for the past ten (10) years and indicated that he had been told he had neuropathy. Id. at 532, 722. Dr. Leon's review of Plaintiff's systems was unremarkable. AR at 533, 723-24. Similarly, Dr. Leon's physical examination was generally unremarkable, except for moderate, bilateral edema in his lower extremities, right greater than left. Id. at 534, 724. On August 11, 2020, Plaintiff was seen at Athletico Physical Therapy for his wrist pain. Id. at 57983, 727-28. Over the next approximately seven (7) weeks, Plaintiff received fifteen (15) physical therapy sessions for his wrist. See id. at 549-83. On August 13, 2020, Plaintiff followed-up with Dr. Leon at Pima Heart and Vascular. Id. at 531, 691-92, 725-26. Plaintiff underwent a venous insufficiency duplex scan due to leg swelling. AR at 531, 691, 725-26. Dr. Leon observed that bilateral lower extremities demonstrate no evidence of deep vein thrombosis on venous duplex and no significant reflux. Id.

On September 15, 2020, Plaintiff returned to Dr. Leon at Pima Heart and Vascular. Id. at 529-30, 537, 719-21. Dr. Leon's review of Plaintiff's system was unremarkable. Id. at 529, 720. Similarly, Dr. Leon's physical examination was unremarkable. Id. at 52930, 720-21. Dr. Leon prescribed stockings for Plaintiff's varicose veins of the right leg. AR at 719. On September 21, 2020, Plaintiff saw Dr. Carrillo at El Rio Health regarding a skin lesion. Id. at 683-86. Plaintiff reported his pain as a one (1) out of ten (10). Id. at 685.

On November 5, 2020, Plaintiff was seen by George S. Abdelmessieh, DPM at Premier Foot & Ankle Surgeons for his right foot pain. Id. at 710-15. Plaintiff reported his pain between six (6) and seven (7) out of ten (10) with tingling, swelling, and redness. Id. at 712. Dr. Abdelmessieh's review of Plaintiff's systems was generally unremarkable, but noted that Plaintiff reported muscle weakness, arthralgias/joint pain, and back pain. AR at 713. Dr. Abdelmessieh observed Plaintiff ambulated with a limp and antalgic gait. Id. Dr. Abdelmessieh assessed peroneal tendinitis of Plaintiff's right lower limb, acquired cavus deformity of the foot bilaterally, and degenerative joint disease of ankle and/or foot on the right. Id. at 714. On November 16, 2020, Plaintiff followed-up with Dr. Carrillo at

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El Rio Health for a skin lesion and back pain. Id. at 679-82. Plaintiff reported his pain as a five (5) out of ten (10). AR at 681. Dr. Carrillo's review of Plaintiff's systems was generally unremarkable, although she noted fatigue. Id. Dr. Carrillo's physical examination was similarly unremarkable. Id. at 681-82. On November 20, 2020, Plaintiff returned to Dr. Abdelmessieh regarding his right foot pain. Id. at 705-709. Dr. Abdelmessieh prescribed a Medrol Pak for inflammation. Id. at 709.

On December 8, 2020, Plaintiff underwent computed tomography of his right ankle. Id. at 677-78. Chad Kohl, M.D. reviewed the images and compared them with March 30, 2020, radiographs of Plaintiff's right foot. AR at 677. Dr. Kohl's impression reported “[n]o soft tissue or bone or joint abnormality[.]” Id.

On January 6, 2021, Plaintiff returned to Dr. Abdelmessieh regarding his right foot pain. Id. at 699-704. Plaintiff denied any change since his previous visit. Id. at 702-703. Dr. Abdelmessieh encouraged taking NSAIDs, exercises, and proper shoe gear. Id. at 703. On January 18, 2021, Plaintiff followed-up with Dr. Abdelmessieh regarding his right foot pain. AR at 693-98. Dr. Abdelmessieh performed an intraarticular steroid injection of Plaintiff's right ankle. Id. at 697-98. Dr. Abdelmessieh further encouraged continued use of ankle braces. Id. at 698.

b. Consultative Examiners

i. Noelle Rohen, PhD

On January 16, 2020, Plaintiff was seen by Noelle Rohen, PhD for a consultative examination upon referral from the Arizona Department of Economic Security (“AZDES”). AR at 448-53. Dr. Rohen noted that her evaluation of Plaintiff was “based upon clinical interview, [Mini-Mental Status Examination (MMSE)], and records provided by DDSA (methadone maintenance notes, 2/15 and 2/19).” Id. at 448. Plaintiff was driven to the evaluation by his father's spouse. Id. Plaintiff reported that he was seeking disability due to a crushed disc which causes pain which disrupts his sleep, as well as his anxiety. Id. Plaintiff indicated that one of the reasons he has his dog is his anxiety. Id. Plaintiff further indicated that he had not had good experiences with work, and noted that when he

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had lost jobs, he had never been told why. AR at 448. Plaintiff also reported a history of head injury, and described the worst incident as in childhood when he jumped his bike and lost control. Id. Plaintiff described needing numerous stiches and estimated losing consciousness for approximately fifteen (15) minutes. Id. Plaintiff opined that his memory was “rocky” since that time. Id.

Plaintiff reported that there was yelling and discord in his childhood home, but denied physical abuse or on-person domestic violence. AR at 448. Plaintiff further reported chronic anxiety since childhood. Id. Plaintiff indicated being outside makes him anxious, irritable, angry, and isolative. Id. Plaintiff stated that “he was jumped by a gang member about seven months ago, [and] ‘got the crap beat out of [him].'” Id. Plaintiff noted that he got the dog after this incident, and it has been made it easier for him to go out. Id. Plaintiff observed that his back pain brings frustration and anxiety. AR at 449. Plaintiff endorsed depression and irritability. Id. Plaintiff further noted poor sleep, primarily due to pain, but also anxiety. Id. Plaintiff described poor daytime energy level, but “excellent” motivation. Id. Plaintiff listed his interests to include hiking, playing pool, and video games. Id. Plaintiff reported poor appetite and concentration. AR at 449. Plaintiff also reported hallucinations consisting of shadows in his periphery; however, he attributed this to past drug use. Id. Plaintiff indicated that he first received treatment for behavioral health concerns thirteen (13) years prior, while he was incarcerated. Id. Plaintiff reported his last employment was more than ten (10) years ago. Id . Plaintiff stated that he “ha[d] repeatedly lost jobs after about 9-18 months and nobody has told him why.” Id. Plaintiff reported eight years off of heroin and on methadone. AR at 450. Plaintiff described living independently with his dog. Id. Plaintiff confirmed that he is able to take care of the daily tasks and accomplishes his activities of daily living without assistance. Id.

Dr. Rohen described Plaintiff to have adequate hygiene, dressed appropriately, and pleasant and cooperative. Id. at 450. Plaintiff exhibited good eye contact, affect was full range, initially suggestive of high anxiety but with attenuation as time went on, linear and

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coherent thoughts, average fund of knowledge, normal rate and flow of speech, and was very good with his young dog. Id. Dr. Rohen administered the Folstein Mini Mental Status Examination. AR at 450. Plaintiff scored 28 out of a possible 30. Id. Dr. Rohen's diagnostic impressions included unspecified trauma and stressor-related disorder, unspecified depressive disorder with anxious distress, and opioid use disorder on methadone maintenance. Id. at 451. Dr. Rohen opined that the “[m]ain disabling issue for this claimant appears to be his reticence and fear of leaving his home and related avoidance.” Id. Dr. Rohen further opined that Plaintiff would be capable of managing benefits on his own behalf. Id.

On the same date, Dr. Rohen completed a Psychological/Psychiatric Medical Source Statement regarding Plaintiff. AR at 452. Dr. Rohen confirmed that Plaintiff's conditions would impose limitations for twelve (12) months. Id. Dr. Rohen described Plaintiff's understanding and memory as grossly intact. Id. Dr. Rohen further observed that Plaintiff's sustained concentration and persistence were adequate for that day's demands, but Plaintiff noted concentration difficulties under demand. Id. Dr. Rohen noted that Plaintiff was able to dress and groom appropriately, but had difficulty dealing with people. Id. Dr. Rohen opined that Plaintiff could learn new tasks and avoid hazards, but that his anxiety may make a less demanding, more static position a better fit. AR at 452. Dr. Rohen reiterated her opinion that Plaintiff was capable of managing his own benefits payments. Id. ii. Jeri B. Hassman, M.D.

On January 16, 2020, Jeri B. Hassman, M.D. examined Plaintiff at the request of the Arizona Department of Economic Security (“AZDES”). AR at 454-60. Plaintiff reported a long history of low back pain and indicated that it started approximately ten (10) years earlier. Id. at 454. Plaintiff further reported that he worked as a custodian at a bowling alley approximately ten (10) years ago, but stopped working because of his back pain. Id. Dr. Hassman noted that Plaintiff had undergone insertion of a spinal cord stimulator and that he keeps it on most of the time at a high level. Id. Plaintiff confirmed

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that the stimulator does help to decrease his back pain. Id. Dr. Hassman also noted Plaintiff's history of drug abuse and current methadone treatment. AR at 454.

Dr. Hassman's review of Plaintiff's systems noted neck pain and constant low back pain, as well as some urinary urgency and frequency, occasional tingling of the left lower leg and foot when he turns on his spinal cord stimulator, and occasional confusion. Id. at 455. Dr. Hassman's physical examination of Plaintiff found:

His gait was very unusual. It looked as if his legs were shaking uncontrollably, as if the stimulator was causing them to shake and he had no control over them. He did not seem to have pain with ambulation, it just seemed as if he had decreased control over his legs. He tried to stand and walk on his heels and almost fell down. He again seemed to have decreased control of his legs when he tried to walk on his toes. The same thing happened when he tried to walk on his heels, and his legs seemed to have a mind of their own, and he almost feel down. He was really unable to perform hopping because of decreased control of his legs. He was able to perform bending at the waist but could not perform kneeling because of decreased control of his legs. He was independent getting in and out of the chair, independent getting on and off the examining table, and independent getting dressed and undressed.

When he sat on the examining table his legs were shaking uncontrollably.

Id . Dr. Hassman's examination of Plaintiff's head, trunk, and upper extremities was generally unremarkable. Id. at 455-56. Dr. Hassman noted that Plaintiff had a positive Romberg sign and a minimal thoracic kyphosis. Id. at 456. Dr. Hassman reiterated the uncontrollable shaking of Plaintiff's lower extremities, but the remainder of her examination was unremarkable. AR at 456. Dr. Hassman diagnosed chronic low back pain and status post insertion of spinal cord stimulator; no evidence of scoliosis but a mild thoracic kyphosis; and history of drug and alcohol abuse until eight (8) years ago, and he currently attends a methadone maintenance clinic. Id.

Dr. Hassman completed a Medical Source Statement of Ability to Do Work-Related Activities (Physical) and reiterated her diagnoses. Id. at 457. Dr. Hassman opined that Plaintiff's conditions would impose limitations for twelve (12) continuous months. Id. Dr. Hassman further opined that Plaintiff could occasionally lift up to twenty (20) pounds and

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frequently lift ten (10) pounds. Id. Dr. Hassman based her opinion on Plaintiff's chronic low back pain, frequent uncontrolled shaking of his legs when he turns the stimulator on, and his decreased balance. AR at 457. Dr. Hassman indicated that Plaintiff would be limited in his ability to stand and/or walk to between six (6) and eight (8) hours in an eight (8) hour day. Id. Dr. Hassman noted that this limitation was based on Plaintiff's chronic low back pain, frequent uncontrolled shaking of his legs when he turns the stimulator on, and decreased balance. Id. at 458. Dr. Hassman further opined that Plaintiff “needs frequent rest breaks and frequent change of position, more frequently than normal because of using the spinal cord stimulator.” Id. Dr. Hassman reported that Plaintiff did not use and assistive device and had no limitation on his ability to sit. Id.

Dr. Hassman found that Plaintiff was unlimited in his ability to see, hear, and speak, as well as his ability to reach, handle, finger, and feel. AR at 458. Dr. Hassman further found that Plaintiff could never climb ladders, ropes, or scaffolds, never crawl, and could only occasionally climb ramps and stairs, stoop, kneel, or crouch. Id. Again, these findings were based upon Plaintiff's chronic low back pain, uncontrollable leg shaking with the stimulator on, and decreased balance. Id. Dr. Hassman opined that Plaintiff was restricted in working around heights and moving machinery, but not in his ability to work around extremes in temperature, with or around chemicals, dust, fumes, gases, or excessive noise. Id. at 459.

II. STANDARD OF REVIEW

The factual findings of the Commissioner shall be conclusive so long as they are based upon substantial evidence and there is no legal error. 42 U.S.C. §§ 405(g), 1383(c)(3); Tommasetti v. Astrue , 533 F.3d 1035, 1038 (9th Cir. 2008). This Court may “set aside the Commissioner's denial of disability insurance benefits when the ALJ's findings are based on legal error or are not supported by substantial evidence in the record as a whole.” Tackett v. Apfel , 180 F.3d 1094, 1097 (9th Cir. 1999) (citations omitted); see also Treichler v. Comm r of Soc. Sec. Admin. , 775 F.3d 1090, 1098 (9th Cir. 2014). “Under

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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.” Biestek v. Berryhill , 139 S.Ct. 1148 (2019) (citations omitted) (alterations in original).

Substantial evidence is “‘more than a mere scintilla[,] but not necessarily a preponderance.'” Tommasetti , 533 F.3d at 1038 (quoting Connett v. Barnhart , 340 F.3d 871, 873 (9th Cir. 2003)); see also Garrison v. Colvin , 759 F.3d 995, 1009 (9th Cir. 2014). Further, substantial evidence is “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Parra v. Astrue , 481 F.3d 742, 746 (9th Cir. 2007). Where “the evidence can support either outcome, the court may not substitute its judgment for that of the ALJ.” Tackett , 180 F.3d at 1098 (citing Matney v. Sullivan , 981 F.2d 1016, 1019 (9th Cir. 1992)); see also Massachi v. Astrue , 486 F.3d 1149, 1152 (9th Cir. 2007). Moreover, the court may not focus on an isolated piece of supporting evidence, rather it must consider the entirety of the record weighing both evidence that supports as well as that which detracts from the Secretary's conclusion. Tackett , 180 F.3d at 1098 (citations omitted).

III. ANALYSIS

A. The Five-Step Evaluation

The Commissioner follows a five-step sequential evaluation process to assess whether a claimant is disabled. 20 C.F.R. § 404.1520(a)(4). This process is defined as follows: Step One asks is the claimant “doing substantial gainful activity[?]” 20 C.F.R. § 404.1520(a)(4)(i). If yes, the claimant is not disabled. Step Two considers if the claimant has a “severe medically determinable physical or mental impairment[.]” 20 C.F.R. § 404.1520(a)(4)(ii). If not, the claimant is not disabled. Step Three determines whether the claimant's impairments or combination thereof meet or equal an impairment listed in 20 C.F.R. Pt. 404, Subpt. P, App.1. 20 C.F.R. § 404.1520(a)(4)(iii). If not, the claimant is not disabled. Step Four considers the claimant's residual functional capacity and past

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relevant work. 20 C.F.R. § 404.1520(a)(4)(iv). If claimant can still do past relevant work, then he or she is not disabled. Step Five assesses the claimant's residual functional capacity, age, education, and work experience. 20 C.F.R. § 404.1520(a)(4)(v). If it is determined that the claimant can make an adjustment to other work, then he or she is not disabled. Id.

In the instant case, the ALJ found that Plaintiff had not engaged in substantial gainful activity since his alleged onset date of March 1, 2010. AR at 16. At step two of the sequential evaluation, the ALJ found that “[t]he claimant has the following severe impairments: degenerative disc disease; arthritis; depressive disorder; and anxiety disorder (20 CFR 404.1520(c) and 416.920(c)).” Id. At step three, the ALJ further found that “the claimant does not have an impairment or combination of impairments that meets or medically equals the severity of one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1 (20 CFR 404.1520(d), 404.1525, 404.1526, 416.920(d), 416.925 and 416.926).” Id. Prior to step four and “[a]fter careful consideration of the entire record,” the ALJ determined that “the claimant has the residual functional capacity to perform light work as defined in 20 CFR 404.1567(b) and 416.967(b)[;] [s]pecifically, the claimant can sit 6 hours out of an 8-hour day, stand 6 hours out of an 8-hour day, walk 6 hours out of an 8-hour day, and occasionally lift and carry 20 pounds and frequently lift and carry 10 pounds[;] . . . occasionally climb stairs and never climb ladders[;] . . . occasionally balance, stoop, kneel, and crouch, and never crawl[;] . . . have occasional exposure to heights, moving machinery, and temperature extremes[;] [and] [m]entally, the claimant can understand, remember, and carry out simple job instructions only, with only occasional interaction with the public.” Id. at 18. The ALJ defined occasional as “very little to 1/3 of the time[,]” frequent as “1/3 to 2/3 of the time[,]” and never as “no useful ability.” Id. At step four, the ALJ found that “[t]ransferability of job skills is not an issue because the claimant does not have past relevant work (20 CFR 404.1568 and 416.968).” AR at 24. At step five, the ALJ found that after “[considering the claimant's age, education, work experience, and residual functional capacity, there are jobs that exist in significant numbers

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in the national economy that the claimant can perform (20 CFR 404.1569, 404.1569(a), 416.969, 416.969(a)).” Id. Accordingly, the ALJ determined that Plaintiff was not disabled. Id. at 14, 24.

B. Medical Opinion Evidence

Plaintiff asserts that “the ALJ erred in analyzing Dr. Hassman's opinion because the ALJ did not adequately explain the factors of consistency and supportability with respect to the opinion; nor is the ALJ's conclusion supported by substantial evidence.” Pl.'s Opening Br. (Doc. 21) at 10. The Court agrees with Plaintiff.

1. Legal Standard

Section 404.1520c, 20 C.F.R., governs the analysis of medical opinions for disability claims filed on or after March 27, 2017. “Under the revised regulations, ‘there is not an inherent persuasiveness to evidence from [government consultants] over [a claimant's] own medical source(s), and vice versa.'” Woods v. Kijakazi , 32 F.4th 785, 791 (9th Cir. 2022) (alterations in original) (quoting Revisions to Rules Regarding the Evaluation of Medical Evidence, 82 Fed.Reg. at 5844)). Rather, medical opinions are evaluated pursuant to the factors set forth in Section 404.1520c(c)(1)-(5), with the most important factors being supportability and consistency:

(1) Supportability . The more relevant the objective medical evidence and supporting explanations presented by a medical source are to support his or her medical opinion(s) or prior administrative medical finding(s), the more persuasive the medical opinions or prior administrative medical findings(s) will be.

(2) Consistency . The more consistent a medical opinion(s) or prior administrative medical fining(s) is with the evidence from other medical sources and nonmedical sources in the claim, the more persuasive the medical opinion(s) or prior administrative medical finding(s) will be.

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20 C.F.R. § 404.1520c(c); see also 20 C.F.R. § 404.1520c(b)(2). The regulations specifically require the ALJ to explain how he or she considered supportability and consistency in evaluating medical opinions and making the disability determination. 20 C.F.R. § 404.1520c(b)(2). Additionally, the ALJ may, but is not required to, consider other factors such as the medical source's relationship with the claimant, the medical source's area of specialization, or “evidence showing a medical source has familiarity with the other evidence in the claim or an understanding of our disability program's policies and evidentiary requirements.” 20 C.F.R. 404.1520c(c)(3)-(5).

2. Analysis

The ALJ summarized Dr. Hassman's consultative examination notes. AR at 21. The ALJ acknowledged that “Dr. Hassman opined that the claimant could do light work activity, with no need for an assistive device, the postural and environmental limitations due to chronic low back pain, frequent uncontrolled shaking of legs when he turns the stimulator on, and decreased balance.” Id. (citations omitted). The ALJ went on to find that “[t]his opinion is partially persuasive as it pertains to the thorough examination and residual functional capacity assessment] [h]owever, the opinion as it pertains to the claimant's need for ‘frequent rest breaks and frequent change of position' is not specific and not supported by the objective medical evidence.” Id. The ALJ fails to articulate how, why, or where this opinion is not supported.

Defendant posits that “Dr. Hassman's opinion appeared to be based on Plaintiff's own subjective reports, meaning that it was inconsistent with the remainder of the record[.]” Def's Response (Doc. 22) at 8. This claim is without merit. Dr. Hassman documented her observations regarding Plaintiff's uncontrolled leg shaking during her examination, as well as its effects on his ambulation and movements. AR at 455-56. The record does not support a finding that Dr. Hassman based her opinion solely on Plaintiff's own reports. As such, the Court finds this does not constitute substantial evidence to reject Dr. Hassman's opinion.

Defendant further argues that “Plaintiff ignores the ALJ's discussion of Plaintiff's

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abilities throughout the decision[,]” pointing to the ALJ's consideration of Plaintiff's activities of daily living. Response (Doc. 22) at 8. The ALJ did not discount Dr. Hassman's opinion because of Plaintiff's activities of daily living, rather that analysis was presented in the context of Plaintiff's symptom testimony and there is nothing in her opinion to suggest that there is any link between that analysis and the rejection of Dr. Hassman's opinion. See AR at 19. “Long-standing principles of administrative law require us to review the ALJ's decision based on the reasoning and factual findings offered by the ALJ-not post hoc rationalizations that attempt to intuit what the adjudicator may have been thinking.” Bray v. Comm'r of Soc. Sec. Admin. , 554 F.3d 1219, 1225-26 (9th Cir. 2009) (citations omitted). The ALJ did not sufficiently explain why she rejected Dr. Hassman's opinion, and the Court finds this constitutes legal error.

C. Plaintiff's Symptom Testimony

Plaintiff asserts that the ALJ failed to “articulate clear and convincing reasons to discount Mr. Sicurello's symptom testimony[.]” Opening Br. (Doc. 21) at 12-16. Defendant argues that “[t]he ALJ properly considered Plaintiff's subjective allegations and found them not supported by the objective evidence or his level of functioning[.]” Response (Doc. 22) at 9. The Court agrees with Plaintiff.

1. Legal Standard

An ALJ must engage in a two-step analysis to evaluate a claimant's subjective symptom testimony. Lingenfelter v. Astrue , 504 F.3d 1028, 1035-36 (9th Cir. 2007). First, “a claimant who alleges disability based on subjective symptoms ‘must produce objective medical evidence of an underlying impairment which could reasonably be expected to produce the pain or other symptoms alleged[.]'” Smolen v. Chater , 80 F.3d 1273, 128182 (9th Cir. 1996) (quoting Bunnell v. Sullivan , 947 F.2d 341, 344 (9th Cir. 1991) ( en banc ) (internal quotations omitted)); see also Ghanim v. Colvin , 763 F.3d 1154, 1163 (9th Cir. 2014). Further, “the claimant need not show that h[is] impairment could reasonably be expected to cause the severity of the symptom []he has alleged; []he need only show that it could reasonably have caused some degree of the symptom.” Smolen , 80 F.3d at 1282

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(citations omitted); see also Trevizo v. Berryhill , 871 F.3d 664, 678 (9th Cir. 2017). “Nor must a claimant produce ‘objective medical evidence of the pain or fatigue itself, or the severity thereof.'” Garrison v. Colvin , 759 F.3d 995, 1014 (9th Cir. 2014) (quoting Smolen , 80 F.3d at 1282). “[I]f the claimant meets this first test, and there is no evidence of malingering, ‘the ALJ can reject the claimant's testimony about the severity of h[is] symptoms only by offering specific, clear and convincing reasons for doing so.'” Lingenfelter , 504 F.3d at 1036 (quoting Smolen , 80 F.3d at 1281); see also Burrell v. Colvin , 775 F.3d 1133, 1137 (9th Cir. 2014) (rejecting the contention that the “clear and convincing” requirement had been excised by prior Ninth Circuit case law). “This is not an easy requirement to meet: ‘The clear and convincing standard is the most demanding required in Social Security cases.'” Garrison , 759 F.3d at 1015 (quoting Moore v. Comm 'r of Soc. Sec. Admin. , 278 F.3d 920, 924 (9th Cir. 2002)).

2. Analysis

The ALJ acknowledged the two-step process for assessing Plaintiff's symptom testimony. AR at 19. Next, the ALJ described Plaintiff's responses on the administrative forms and recounted his hearing testimony. Id. at 33-34. The ALJ then concluded “[a]fter careful consideration of the evidence, the undersigned finds that the claimant's medically determinable impairments could reasonably be expected to cause the alleged symptoms; however, the claimant's statements concerning the intensity, persistence and limiting effects of these symptoms are not entirely consistent with the medical evidence and other evidence in the record for the reasons explained in this decision.” Id. at 19. The ALJ went on to review Plaintiff's medical records and other evidence in the file. See id. at 19-23.

SSR 16-3p states, in relevant part:

We will not evaluate an individual's symptoms based solely on objective medical evidence unless that objective medical evidence supports a finding

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that the individual is disabled. We will evaluate an individual's symptoms based on the evidence in an individual's record as described below; however, not all of the types of evidence described below will be available or relevant in every case.

* * *

In evaluating an individual's symptoms, it is not sufficient for our adjudicators to make a single, conclusory statement that “the individual's statements about his or her symptoms have been considered” or that “the statements about the individual's symptoms are (or are not) supported or consistent.” It is also not enough for our adjudicators simply to recite the factors described in the regulations for evaluating symptoms. The determination or decision must contain specific reasons for the weight given to the individual's symptoms, be consistent with and supported by the evidence, and be clearly articulated so the individual and any subsequent reviewer can assess how the adjudicator evaluated the individual's symptoms.

SSR 16-3p, available at 2017 WL 5180304, at *5, 10 (October 25, 2017).

In discounting Plaintiff's symptom testimony, the ALJ observed that Plaintiff “is not dependent on others to perform his activities of daily living.” AR at 23 (citations omitted). The ALJ is reminded that “[t]he Social Security Act does not require that claimants be utterly incapacitated to be eligible for benefits, and many home activities may not be easily transferable to a work environment where it might be impossible to rest periodically or take medication.” Smolen , 80 F.3d at 1287 n.7 (citations omitted). “[T]he mere fact that [Plaintiff] cares for [two] small [animals] does not constitute an adequately specific conflict with h[is] reported limitations.” Trevizo v. Berryhill , 871 F.3d 664, 682 (9th Cir. 2017). “Moreover, many home activities are not easily transferable to what may be the more grueling environment of the workplace, where it might be impossible to periodically rest or take medication.” Id. (quotations and citations omitted). Plaintiff's ability to live independently is not necessarily consistent with full time work activities. The ALJ also observed that Plaintiff “acknowledged that he is clean and sober from heroin for 9 years.” AR at 23. Using Plaintiff's recovery as a reason to discount his symptom testimony is unreasonable on its face. Similarly, the ALJ noted that Plaintiff “visits his father on Sunday's [sic] for family dinner.” Again, spending time with family once per

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week does not support wholesale rejection of Plaintiff's symptom testimony.

Defendant posits possible reasons for why the ALJ rejected Plaintiff's symptom testimony based upon the medical record. See Response (Doc. 22) at 9-13. The ALJ's opinion, however, merely concludes that Plaintiff's “symptoms are not entirely consistent with the medical evidence and other evidence in the record for the reasons explained in this decision[,]” yet nowhere in the opinion, either in the summary of Plaintiff's medical records or elsewhere, are there any statements or citations that link the medical evidence to discounting Plaintiff's symptom testimony. AR at 19. As such, the Court finds that the ALJ failed to provide specific, clear and convincing reasons for discounting Plaintiff's testimony which is supported by substantial evidence in the record. See Lingenfelter v. Astrue , 504 F.3d 1028, 1036 (9th Cir. 2007); Tommasetti v. Astrue , 533 F.3d 1035, 1040 (9th Cir. 2008). The Court further finds that this error was not harmless.

D. Remand

“‘[T]he decision whether to remand the case for additional evidence or simply to award benefits is within the discretion of the court.'” Rodriguez v. Bowen, 876 F.2d 759, 763 (9 Cir. 1989) ( quoting Stone v. Heckler, 761 F.2d 530, 533 (9 Cir. 1985)). “Remand for further administrative proceedings is appropriate if enhancement of the record would be useful.” Benecke v. Barnhart , 379 F.3d 587, 593 (9th Cir. 2004) ( citing Harman v. Apfel, 211 F.3d 1172, 1178 (9 Cir. 2000)). Conversely, remand for an award of benefits is appropriate where:

(1) the ALJ failed to provide legally sufficient reasons for rejecting the evidence; (2) there are no outstanding issues that must be resolved before a determination of disability can be made; and (3) it is clear from the record that the ALJ would be required to find the claimant disabled were such evidence credited.

Benecke, 379 F.3d at 593 (citations omitted). Where the test is met, “we will not remand solely to allow the ALJ to make specific findings. . . . Rather, we take the relevant testimony to be established as true and remand for an award of benefits.” Id . (citations omitted); see also Lester v. Chater , 81 F.3d 821, 834 (9th Cir. 1995). “Even if those requirements are

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met, though, we retain ‘flexibility' in determining the appropriate remedy.” Burrell v. Colvin , 775 F.3d 1133, 1141 (9th Cir. 2014).

Here, the ALJ committed legal error in assessing the medical opinion evidence and Plaintiff's symptom testimony. This analysis requires reconsideration of all evidence in this case. As such, the Court recommends remand on an open record.

IV. CONCLUSION

Based on the foregoing, the Court finds the ALJ committed legal error in assessing the medical opinion evidence and Plaintiff's symptom testimony. Such error requires reversal and remand, and the Court will direct reanalysis on an open record.

V. RECOMMENDATION

For the reasons delineated above, the Magistrate Judge recommends that the District Judge enter an order GRANTING Plaintiff's Opening Brief (Doc. 21) and REVERSING and REMANDING the Commissioner's decision for further consideration.

Pursuant to 28 U.S.C. § 636(b) and Rule 72(b)(2), Federal Rules of Civil Procedure, any party may serve and file written objections within fourteen (14) days after being served with a copy of this Report and Recommendation. Accordingly, objections shall be due on or before September 6, 2023 . A party may respond to another party's objections, any responses to objections shall be due on or before September 13, 2023 . No replies shall be filed unless leave is granted from the District Judge. If objections are filed, the parties should use the following case number: CV-22-0078-TUC-SHR .

Failure to file timely objections to any factual or legal determination of the Magistrate Judge may result in waiver of the right of review.