van Merkestyn v. Commissioner of Social Security Administration

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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ARIZONA
Dirk N. van Merkestyn,
Plaintiff,
v.
Commissioner of Social Security
Administration,
Defendant.
No. CV 25-00503 PHX KML (CDB)
REPORT AND
RECOMMENDATION
TO THE HONORABLE KRISSA M. LANHAM:
This case was referred to the Magistrate Judge for preparation of a report and
recommendation in accordance with the provisions of Rules 72.1 and 72.2(a)(10) of the
Local Rules of Civil Procedure for the District of Arizona.
I. Procedural Background
Plaintiff filed an application for Social Security disability insurance benefits,
pursuant to Title II, on January 12, 2022. (ECF No. 14-4 at 11). Plaintiff alleged he was
unable to work beginning November 23, 2020 (ECF No. 14-7 at 5), due to “suffer[ing]
from depression all my life” and headaches, which caused him to “miss a lot of work”
and “lose multiple jobs.” (ECF No. 14-7 at 3). Plaintiff’s claim was denied initially on
September 14, 2022 (ECF No. 14-4 at 2-11), and on reconsideration on June 15, 2023
(ECF No. 14-4 at 12-20).
Plaintiff requested a hearing before an Administrative Law Judge (“ALJ”), which
was conducted November 3, 2023. (ECF No. 14-3 at 34-63). Plaintiff was represented by
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counsel at the hearing. (Id.). In an order entered March 29, 2024, the ALJ determined
Plaintiff was not disabled. (ECF No. 13-3 at 13-29). Plaintiff sought review of the ALJ’s
decision by the Social Security Appeals Council, which affirmed the ALJ’s decision on
December 23, 2024 (ECF No. 14-3 at 2), making the ALJ’s decision the final, appealable
decision of the Commissioner.
II. Governing Law
Plaintiff seeks disability benefits pursuant to the Social Security Act. Disability
insurance benefits pursuant to Title II are paid to disabled persons who have contributed
to the Social Security program regardless of financial need. 42 U.S.C. §§ 401-425.
Disability is defined as an “inability to engage in any substantial gainful activity” due to
“a medically determinable physical or mental impairment.” Bowen v. Yuckert, 482
U.S. 137, 140 (1987) (internal quotations omitted).
To establish eligibility for benefits based on disability, the claimant must show
they suffer from a medically determinable physical or mental impairment which is
expected to result in death or that has lasted or can be expected to last for a continuous
period of not less than twelve months, and the impairment renders the claimant incapable
of performing the work they previously performed and incapable of performing any other
substantial gainful employment that exists in the national economy. 20 C.F.R.
§ 404.1505. If a claimant meets both of these requirements, they are by definition
“disabled.” See, e.g., Frost v. Barnhart, 314 F.3d 359, 365 (9th Cir. 2002). To be entitled
to disability insurance benefits pursuant to Title II, the claimant must also establish they
were either permanently disabled, or subject to a condition which became so severe as to
disable them, prior to the date upon which their disability insured status expired, i.e.,
prior to their “date last insured” for benefits. See, e.g., Tidwell v. Apfel, 161 F.3d 599, 601
(9th Cir. 1998).1
1 Plaintiff was last insured for disability insurance benefits on December 31, 2025. (ECF
No. 14-4 at 12).
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A five-step sequential evaluation governs eligibility for benefits under Title II. See
20 C.F.R. § 416.920; Barnhart v. Thomas, 540 U.S. 20, 24 (2003); Bowen, 482 U.S. at
140-42. First, the claimant must establish they were not gainfully employed at the time of
their application. See 20 C.F.R.§ 416.920. Next, the claimant must be suffering from a
“medically severe” impairment or “combination of impairments.” Id. The third step is to
determine whether any of the claimant’s impairments meets or equals one of the “listed”
impairments included in Appendix 1 to this section of the Code of Federal Regulations.
See id. If any of the claimant’s impairments meets or equals one of the impairments listed
in Appendix 1, the claimant is conclusively “disabled.” See id. At the fourth step of the
process the ALJ determines whether the claimant, despite their impairments, can perform
work similar to work they have performed in the past. Id. This requires the ALJ to make
an assessment of the claimant’s “residual functional capacity” to do work-related tasks on
a sustained basis. A claimant whose “residual functional capacity” allows them to
perform their “past relevant work,” despite their impairments, is denied benefits. Id.
The claimant bears the burden of proof throughout the first four steps of the
evaluation. See White v. Kijakazi, 44 F.4th 828, 833 (9th Cir. 2022); Andrews v. Shalala,
53 F.3d 1035, 1040 (9th Cir. 1995); Smith v. Commissioner of Soc. Sec. Admin., 678 F.
Supp. 3d 1131, 1134 (D. Ariz. 2023); Bruce v. Kijakazi, 711 F. Supp. 3d 1217, 1223 (D.
Nev. 2024). At step five of the evaluation the burden shifts to the ALJ to demonstrate the
claimant can perform substantial gainful work that exists in the national economy, given
their residual functional capacity. See, e.g., 20 C.F.R. § 404.1520(a)(4)(v); Garrison v.
Colvin, 759 F.3d 995, 1011 (9th Cir. 2014). In making this determination the ALJ must
consider factors such as the claimant’s age, education, and past work experience.
20 C.F.R. § 404.1520(a)(4)(v). If the claimant can perform work, the ALJ must find that
the claimant is not disabled. Id. If the claimant is not capable of work, the analysis
concludes with a finding that the claimant is disabled and entitled to benefits. Id.
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III. Standard of Review
The Court’s jurisdiction extends to review of the final decision of the ALJ denying
Plaintiff’s application for Social Security disability-based benefits. See 42 U.S.C.
§ 405(g). Judicial review of a decision of the ALJ 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 Plaintiff’s
claims for benefits and whether the record as a whole contains substantial evidence to
support the ALJ’s findings of fact. See id. § 423; Allen v. Kijakazi, 35 F.4th 752, 756 (9th
Cir. 2022); Ford v. Saul, 950 F.3d 1141, 1154 (9th Cir. 2020).
Satisfying the substantial evidence standard requires more than a scintilla but less
than a preponderance of record evidence. E.g., Biestek v. Berryhill, 587 U.S. 97, 102-03
(2019). Substantial evidence is only a “modest burden,” Smith v. Kijakazi, 14 F.4th 1108,
1111 (9th Cir. 2021), requiring only “such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion.” Biestek, 587 U.S. at 103 (citation omitted).2
See also Woods v. Kijakazi, 32 F.4th 785, 788 (9th Cir. 2022). Substantial evidence has
been defined as the amount of relevant evidence a reasonable mind would accept as
adequate to support a conclusion. Smith v. Kijakazi, 14 F.4th at 1154. See also Woods, 32
F.4th at 788; Garrison, 759 F.3d at 1009. Logically, a quantum of evidence is not
substantial if it is outweighed by the evidence supporting a contrary conclusion. See
Musgrave v. Sullivan, 966 F.2d 1371, 1374 (10th Cir. 1992); 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).
2 The phrase “substantial evidence” is a “term of art” used throughout
administrative law to describe how courts are to review agency factfinding. …
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).
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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).
IV. Record on Appeal
Plaintiff was born in December of 1965, and he was 56 years of age on the date
that he applied for disability insurance benefits. (ECF No. 14-3 at 12). He has an
associate degree and past relevant work as a drafter and mechanical design engineer.
Plaintiff alleges he became unable to work beginning November 23, 2020 (ECF No. 14-7
at 5), due to depression and headaches, which caused him to “miss a lot of work” and
“lose multiple jobs.” (ECF No. 14-7 at 3). The Social Security Administration’s records
indicate Plaintiff’s last reported earnings were in 2020. (ECF No. 14-7 at 9-10, 14).
The record indicates that between 2015 and 2018, when Plaintiff was still
working, he had been prescribed Lexapro (a selective serotonin reuptake inhibitor
(“SSRI”)), Prozac (fluoxetine, a SSRI), Zoloft (sertraline), Wellbutrin (bupropion), and
Effexor (venlafaxine), all used to treat depression and anxiety, and Abilify (aripiprazole,
an antipsychotic), Buspar (buspirone, an anxiolytic, used to treat anxiety), and Seroquel
(quetiapine, an atypical antipsychotic medication used primarily to treat schizophrenia,
bipolar disorder, and major depressive disorder). (ECF No. 14-9 at 13-14). Plaintiff
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generally took these medications for less than a year without significant positive results,
with the exception of Prozac, which was discontinued after two years. (Id.). Plaintiff was
quickly taken off Seroquel due to an inability to tolerate the medication’s side effects.
(ECF No. 14-9 at 13).
On February 12, 2020, approximately eight months prior to the alleged onset of
disability, Plaintiff was seen by Dr. Friday at Redemption Psychiatry, for evaluation and
treatment of depression and anxiety. (ECF No. 14-9 at 13). He reported his medications
as carvedilol (a beta-blocker), duloxetine (Cymbalta), lithium carbonate “for
antidepressant augmentation,” and propranolol (a beta-blocker) to be taken “as needed for
anxiety.” (Id.). Plaintiff had recently been prescribed Lamictal (lamotrigine, an
anticonvulsant used to treat bipolar disorder), Adderall (an amphetamine), and Ritalin
(methylphenidate, used to treat attention deficit hyperactivity disorder), which were
discontinued in 2019 after two to three months. (ECF No. 14-9 at 14).
A Redemption Psychiatry progress note, dated February 12, 2020, ten months
prior to Plaintiff’s last date of employment and approximately two years before he
applied for disability benefits, states:
Dirk is a 54-year-old male who presents to Redemption Psychiatry for
ongoing psychiatric evaluation and treatment. He was tried on Adderall
after last visit and says he had no benefit from even up to 15 mg twice a
day. He would be willing to try a different augmentation strategy. He says
that he had a friend who was getting ECT [electroconvulsive therapy] when
he was younger and he would be willing to have a referral for ECT
treatment. He wonders if getting the genetic testing done would be helpful
to find the right medication for him. He lost his job and has not been able to
keep a job for the past few months. He was asking about applying for
disability. He completed TMS and ketamine treatments but did not have a
response. It did seem to have a benefit for his thoughts of wanting to die.
Dirk reports regressing despite treatment. Treatment does not seem to be
working. There are no notable side effects.
(Id.) (emphasis added). Plaintiff reported his sleep was “fair.” (Id.).
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Dr. Friday noted Plaintiff had previously seen Dr. Ludmer at Lakeforest
Neuropsychiatry Association,3 and that Plaintiff had completed a course of therapy with
Dr. Ludmer, consisting of more than 12 sessions. (Id.). Dr. Friday noted appropriate
dress, adequate grooming and hygiene, normal motor activity, fair eye contact, normal
speech, normal affect, and depressed and anxious mood. (Id.). Plaintiff’s thought process
was logical and goal-directed, and Plaintiff did not exhibit delusions or suicidal ideation.
Insight and judgment were good, Plaintiff was alert and oriented, and his memory and
concentration were intact. (Id.). The primary diagnoses were major depressive disorder,
recurrent episode, severe, and unspecified anxiety disorder. (Id.). Dr. Friday provided 20
minutes of supportive therapy,” working “on ways to improve, reinforce, and sustain the
patient’s physiological well-being and psychological self-esteem and self-reliance.” (ECF
No. 14-9 at 15). The treatment recommendations were individual therapy, an intensive
outpatient program, and electroconvulsive therapy. (Id.). Plaintiff was started on
mirtazapine (an atypical antidepressant), and advised to return in two to three months
(Id.). There was no discussion of headaches, and no scores entered on the PHQ-9 or
GAD-7 forms attached to the record of this appointment.4
Plaintiff was seen by Dr. Friday on April 14, 2020. (ECF No. 14-9 at 9). He was
then taking carvedilol, Cymbalta, lithium carbonate, mirtazapine (Remeron), and
propranolol as needed. (Id.). The notes state:
… He got a new job and it is an essential business that has contracts with
the government. He says that he noticed a little more energy for a couple
weeks after starting the Remeron. He says that he had a friend who was
getting ECT when he was younger and he would be willing to have a
referral for ECT treatment. … Dirk reports regressing despite treatment.
Treatment seems to be helping. There are no notable side effects.
3 Possibly meaning Lake Forest Neuropsychiatry Associates, in Lake Forest, Illinois,
where a Dr. Ludmer practices and where Plaintiff lived in 2008.
4 The PHQ-9 is a commonly-used tool for screening, diagnosing, and measuring the
severity of depression through a self-administered questionnaire. The GAD-7 is a screening tool
used to assess probably cases of generalized anxiety disorders and to monitor symptom changes.
These forms are included in Dr. Friday’s treatment records but not completed.
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(Id.). Plaintiff reported fair sleep and good appetite. (Id.). Plaintiff was provided with
twenty minutes of supportive psychotherapy.” (ECF No. 14-9 at 10). No medications
were discontinued or started. As with Plaintiff’s prior session with Dr. Friday, there is no
mention of headaches and no scoring of symptoms.
Plaintiff was next seen by Dr. Friday on July 14, 2020. (ECF No. 14-9 at 5). The
history notes state Plaintiff had been working in the same job since February, he had a
little more energy, and that treatment “seems to be helping.” (Id.). The notes state:
“Depression has been severe, Anxiety has been very high,” and Plaintiff’s sleep was
“fair” and his appetite was “good.” (Id.). Dr. Friday provided 20 minutes of supportive
therapy.” (ECF No. 14-9 at 11). Cymbalta was stopped and Trintellix (vortioxetine, an
antidepressant) was started. Id. Treatment recommendations were individual therapy, an
intensive outpatient program, and ECT; Plaintiff expressed concern that ECT would
result in memory loss. Id.
Plaintiff was seen by Dr. Friday on September 23, 2020. (ECF No. 14-9 at 43).
The notes states: “He was switched from Cymbalta to Trintellix last visit and says that he
has not seen any difference at all. He is having about one headache a week and it seems
to be causing him to be incapacitated, so he worries how it will affect work.” (Id.). “Dirk
reports stagnating despite treatment. Treatment seems to be helping. There are no notable
side effects.” (Id.). Plaintiff was provided with 20 minutes of supportive therapy. (ECF
No. 14-9 at 45). Dr. Friday opined: “He has tried many medications and may benefit from
the off-label treatment with Tramadol given its serotonin effects.” (ECF No. 14-9 at 43).
Plaintiff ceased working in November of 2020.
Plaintiff was seen by Dr. Friday on December 16, 2020. (ECF No. 14-9 at 39). The
notes state:
… He was switched from Cymbalta to Trintellix a couple months ago and
it hasn’t made any difference at all. He lost his job and it has been more
stressful financially. He says that he had a friend who was getting ECT
when he was younger and he was given a referral for ECT treatment, but he
hasn’t pursued it since he is worried that he would have memory loss.
However, he says he is considering calling again. He completed TMS
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[Transcranial Magnetic Stimulation] and ketamine treatments but did not
have a response. It did seem to have a benefit for his thoughts of wanting to
die. He is having about one headache a week and it seems to be causing
him to be incapacitated, so he tried Tramadol with no benefit. He wonders
if getting the genetic testing done would be helpful to find the right
medication for him. Dirk reports stagnating despite treatment. Treatment
seems to be helping. There are no notable side effects.
(Id.).
Plaintiff was seen by Dr. Friday on March 9, 2021. The notes state:
… He has been declining significantly and has a hard time with staying
motivated for treatment. Since he lost his job, it has been very stressful
financially. He has dogs that he cares for and they help him to stay
grounded. … he is willing to try ECT at this point. …
(ECF No. 14-9 at 35). Plaintiff reported fair sleep and good appetite. (Id.). His current
medications were listed as carvedilol, lithium carbonate, mirtazapine, and Pristiq (a
serotonin-norepinephrine reuptake inhibitor). Id. Plaintiff was dressed appropriately and
adequately groomed, and his mood was anxious and depressed although he denied
suicidal ideation or thoughts of self-harm. (ECF No. 14-9 at 36). His insight and
judgment were good, and he was alert and oriented. (Id.). Plaintiff received 20 minutes of
supportive therapy, focusing on “ways to improve, reinforce, and sustain the patient’s
physiological well-being and psychological self-esteem and self-reliance.” (Id.). The
same treatment recommendations were made as previously, and “[m]edication and non-
medication options were discussed.” (ECF No. 14-9 at 37). The notes also state: “Support
application for Social Security Disability.” (Id.).
A psychiatric evaluation conducted at Southwest Network on April 20, 2021,
noted Plaintiff suffered from major depressive disorder and social anxiety, and that
Plaintiff did not have suicidal ideation. (ECF No. 14-10 at 22-24).5 Plaintiff reported he
had used cannabis during the 1980s and 1990s, and used cocaine and methamphetamine
5 These notes and evaluations are signed by Danise Leveille, whose credentials are “MA
[master of social work], LPC [licensed professional counselor], BHP [behavioral health
professional”], but it is not clear if Leveille conducted an interview, as a different person is listed
as the “assessor,” with the “credentials” of “BS, BHT [behavioral health technician].” (ECF No.
14-10 at 20).
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in his twenties. (ECF No. 14-10 at 23). The treatment notes from Southwest Network
dated April 20, 2021, indicate Plaintiff was then on Medicaid and he had been deemed by
the Arizona Department of Economic Security to be in the “population” of the severely
mentally ill (“SMI”). (ECF No. 14-10 at 11). The notes state Plaintiff had been diagnosed
with major depressive disorder, recurrent, severe without psychotic features.
His symptoms included “depression in the form of sadness, hopelessness,
headaches, lack of drive and procrastination. Dirk reports his sleep schedule
is “flipped” and he sleeps during the day. Dirk denies experiencing any
delusions, hallucinations, or paranoia. … he feels this past year has been
about the same as in the previous year. Dirk reports significant stressors
over the past year include the loss of a job. … Dirk reports his baseline is to
be depressed and he is “medication resistant”. … Dirk reports he was
seeing a psychologist for counseling last year but the provider contracted
COVID-19 and so he has not been able to see him. … Dirk reports his
medication keeps him from “crashing” but does not “uplift” or alleviate his
depression. … Dirk reports he cannot remember a time that he did not feel
symptoms of depression. Dirk reports he first sought treatment around 1984
or 1985 … but was not put on medications until he was in his 20s. He has
been on and off medication ever since that time. Dirk reports he has never
been hospitalized for psychiatric reasons. … Dirk reports he cannot recall a
specific trigger or event for his depression but reports he was able to
manage it for many years but life stressors including relationship breakups
and loss of employment has decreased his ability to manage symptoms.
(ECF No. 14-10 at 12). Plaintiff presented with good concentration and normal speech.
(ECF No. 14-10 at 13). He reported he was able to complete activities of daily living,
including cooking, cleaning, showering, and shopping, “but his depression is a barrier at
times.” (Id.). He reported savings from his last job, and that he had filed for
unemployment benefits. (ECF No. 14-10 at 15). He reported he enjoyed playing video
games and wanted to “start a ‘side business using 3D printer for design projects.’” (Id.).
Plaintiff stated he had a close friend who recently moved to Minnesota, and that he had a
neighbor that he socialized with occasionally who also suffered from depression. (Id.).
Plaintiff reported a desire to be able to maintain employment. (ECF No. 14-10
at 16). With regard to prior employment, Plaintiff reported his last job was with a “temp
agency” from June of 2019 through November of 2019, but that he was “let go due to
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missing too many days of work.” (Id.). His reported employment from 2016 through
March of 2018 was through a “temp agency” as a design engineer for three different
companies. (Id.). He reported that from March of 2014 through August of 2016 he
worked as a design engineer, but was “laid off due to not enough work.” (Id.).6 Plaintiff
reported he was taking tramadol for headaches. (ECF No. 14-10 at 17). The
“biopsychosocial formulation” states:
Dirk’s predisposing factors for mental illness include a family history.
Dirk’s precipitating factors include life stressors such as job loss and
breakups. Dirk’s perpetuating factors include headaches, maladaptive
coping skills, job loss and lack of income. Protective factors include job
skills, education, adequate access to care, stable housing, insight and
engagement in counseling.
(ECF No. 14-10 at 19). The treatment plan from Southwest Network was to continue case
management and medication management. (ECF No. 14-10 at 24).
Plaintiff was seen by Dr. Friday at Redemption Psychiatry on April 27, 2021. The
progress note states:
… He has been declining significantly and has a hard time with staying
motivated for treatment. Since he lost his job, it has been very stressful
financially. He has dogs that he cares for and they help him to stay
grounded. … he is willing to try ECT at this point if he can get it covered.
(ECF No. 14-9 at 31).
Plaintiff’s results on a mental status examination conducted by Dr. Friday were
not changed. Plaintiff’s muscle tone, strength, gait, and station were normal. The
diagnoses were again major depressive disorder, recurrent episode, severe, and
unspecified anxiety disorder. (ECF No. 14-9 at 32-33). Dr. Friday provided 20 minutes of
supportive therapy and recommended an intensive outpatient program of individual
therapy. (ECF No. 14-9 at 33). With regard to ECT, the notes state “He got an ECT
6 In 2012 Plaintiff worked for Techstaff of Arizona, and in 2013 he worked for
Nanovoltaix. In 2014, 2015, and 2016 Plaintiff worked for Colnatec LLC. In 2016 Plaintiff
worked for both Colnatec and Aerotek Affiliated Services (a staffing service). In 2017, 2018, and
2019 Plaintiff’s earnings were reported by Aerotek. In 2020 Plaintiff worked for Robertson Fuel
Systems. (ECF No. 14-7 at 13-14).
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consultation with Copper Springs, but not with the doctor,” and that Plaintiff “consulted
with Copper Springs and has decided not to move forward with treatment.” (ECF No. 14-
9 at 31, 33).7 The record from this visit contains no measured PHQ-9 score.
A progress note from Southwest Network dated May 28, 2021, indicated Plaintiff
denied headaches. (ECF No. 14-10 at 27). His thought processes, concentration, and
judgment were “good.” (ECF No. 14-10 at 28). His current prescriptions were
venlafaxine and mirtazapine, and lithium carbonate was added. (Id.). The notes state:
“recommend psychotherapy-CBT [cognitive behavioral therapy]. Peer support.” (ECF
No. 14-10 at 29).
Plaintiff was seen at Terros on June 28, 2021, for an intake assessment. (ECF No.
14-9 at 58). He reported his current medications as mirtazapine, lithium, and venlafaxine.
(ECF No. 14-9 at 60). The assessment notes state:
Presenting Issue: “as far back as I can remember I have suffered with
depression, [diagnosed] with severe depression, and Social Anxiety
Disorder, it has caused pain and suffering, loss of jobs, I have been to a lot
of psychiatrists and psychology…
Symptoms: feel like a wet blanket drept [sic] over my shoulders, no drive to
do anything, sleep is “screwy”
***
DTS/DTO: Denies. Hx of Attempts-in mid 80s, was going to step out in
front of a train.
Substance Use/Abuse: Denies …
Hobbies/Leisure Activities: “working on vehicles, 3D printer, spending
time taking dogs to the park”
Current Stressors: “everything, insurance stuff”
(ECF No. 14-9 at 58).
Plaintiff stated he last worked in October of 2020. (ECF No. 14-9 at 59). There is
no mention of headache in the Terros intake records. Plaintiff reported he was last treated
at Redemption Psychiatry in March of 2021, and that he had been in counseling for
7 In Plaintiff’s disability proceedings a request was made for records from Copper
Springs East Mental Health Facility, an Arizona behavioral health hospital affiliated with
Redemption Psychiatry. (ECF No. 14-9 at 48). A second request was made June 20, 2022. (Id.).
No records were received.
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depression with different psychiatrist from November of 2020 through January of 2021.
(ECF No. 14-9 at 60). Plaintiff reported he had been seen at Southwest Network for
“SMI” on April 1, 2021. (Id.). His mood was depressed, with flat affect, but he exhibited
clear speech, logical thought process, normal thought content, and normal insight and
judgment. (Id.). Plaintiff reported “[s]ignificant losses within the last two years as “[l]oss
of friendship …. Pt has recently reconnected.” (ECF No. 14-9 at 61).
A “Patient Health Questionnaire (PHQ-9)” and GAD7 (“Generalized Anxiety
Disorder”) assessment were performed at Terros on intake, resulting in a finding of
moderately severe depression and mild generalized anxiety disorder, with “no drive or
energy, feeling off.” (Id.). Plaintiff’s goals were “GET BETTER-I CAN DO MY DAY
TO DAY TASKS, TAKE CARE OF MY PUPS BETTER, NOT BE IN BED ALL
DAY,” and he described his strengths as “MECHANICAL INCLINED,
HARDWORKING, LOYAL.” (Id.). The clinical summary states a diagnosis of “major
depressive disorder, recurrent severe without psychotic features,” noting Plaintiff
reported “experiencing 7/9 symptoms with extreme functioning impairment in the
symptoms and can occur most of the time or nearly every day.” (ECF No. 14-9 at 62).
The treatment recommendations were “group treatment” and “mood group,” but Plaintiff
declined group therapy. (Id.). He agreed to “individual counseling to discuss symptoms
of depression and treatment.” (Id.). The prognosis was “fair so long as patient follows
treatment recommendations.” (Id.). There is no mention of headache in this record.
Plaintiff was seen at Terros on June 28, 2021. The notes state: “… Pt appears to be
willing to work on learning healthy coping skills that Pt can utilize to assist in reducing
current symptoms. … Pt shared healthy coping skills include ‘working on vehicles, 3D
printer, spending time taking dogs to the park.’” (Id.).
When seen at Southwest Network on June 29, 2021, Plaintiff reported being “more
depressed, sleeping more, and no motivation.” (ECF No. 14-10 at 32). He was continued
on venlafaxine, lithium carbonate, and mirtazapine. (ECF No. 14-10 at 35). He reported
his depression was “a bit” worse for the “last week.” (Id.).
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Plaintiff was seen at Terros on July 19, 2021. (ECF No. 14-9 at 159). The notes
state:
Patient reported that he feels depression takes over and it interferes with
lack of motivation. Patient described his typical day and what his goals
would be if his problems were solved overnight and he indicated he would
be looking for a job. Patient stated that he does have suicidal thoughts and
has a but no intent. Patient indicated that his drive to keep living is to help
take care of his mother and his dogs.
(Id.). The treatment notes from Terros dated August 6, state:
Patient indicated that nothing has been different since last session and
indicated that he stopped taking his medications because they made him
feel ill and missed his phone conversation with his psych provider at his
SMI clinic. Patient indicated that he did reduce the dosages of his lithium.
Patient indicated that he has been laying around watching movies and has
become frustrated with the conspiracy theories that have been playing on
shows. Patient indicated that his depression and anxiety “hold me back.”
Patient indicated that he sometimes doesn’t feel like he has enough energy
and often tells himself “what is it matter is a good a change or why bother.”
(ECF No. 14-9 at 152). Plaintiff denied suicidal thoughts. (Id.).
A progress note from Southwest Network dated August 19, 2021, states Plaintiff
“stopped taking the lithium because he got sick.” (ECF No. 14-10 at 37). Plaintiff did not
complain of headaches. (ECF No. 14-10 at 38). Lithium was stopped and oxcarbazepine
(an anticonvulsant) was added for “mixed mood.” (ECF No. 14-10 at 40).
Plaintiff attended a telephonic therapy session with his Terros provider on
September 3, 2021. (ECF No. 14-9 at 149). The notes state “he has gotten off the lithium
and has been starting to feel better.” (Id.). Plaintiff reported “he even was able to work on
his truck to get it repaired to take his dog to the vet and has been keeping up on those
appointments and reports that while he still has depression he seems to be feeling more
energy.” (Id.).
Plaintiff attended a telephonic therapy session with his Terros provider on
September 24, 2021. (ECF No. 14-9 at 147). The notes state:
Patient reported that while he did have some positive days between last
session and today …he feels like he’s lately on a downhill slope. Patient
stated even though he had a positive effect that it just always seems like
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“this is who I am and this is how it will be.” Patient described his feelings
of depression as a “wet heavy blanket.” … Patient indicated that when he
got [off] of the lithium he felt better and reported having more energy and
was able to do some packing some yard work. …
(ECF No. 14-9 at 147-48).
Plaintiff attended a therapy session at Terros on October 1, 2021. (ECF No. 14-9
at 145). The notes state Plaintiff had made
“minimal progress” Patient reported that he is noticing an increase in his
headaches. … Patient described his mood as “steady” and “not real
different.” Patient indicated that there was nothing positive that occurred
this week. … Patient indicated that he is taking his medications regularly.
Patient participated in activity to list out his depression and what it looks
like and then followed up by writing description about him.
… Clinician used motivational interviewing to encourage Pt’s self-
reflection and support positive change talk. Clinician also recommended an
exercise to separate his depression from his identity. Clinician noted patient
was able to describe himself as honest, intelligent, helpful, caring and
friendly. The list was further broken down into goals and rated in short or
long-term goals. To assist with behavioral activation clinician
recommended patient to pick a short-term goal and work on it before next
session.
P: … Patient seemed to be open to the exercise and participated in it
however did chuckle as if he was not taking it seriously. Despite this patient
did participate in the activity and agreed to homework.
P- patient will work on his short-term goal of spending more time taking
his pups out at least four times in the next two weeks.
(ECF No. 14-9 at 146).
Plaintiff participated in a therapy session with his Terros provider on October 15,
2021. (ECF No. 14-9 at 144). Plaintiff reported “his past couple of weeks have been ‘so-
so,” and that he had “been sleeping a lot.” (Id.). He reported being “bored and out of it,”
and that he had “tried to change his thought or inner dialogue of I failed to I did the best I
could,” but told his practitioner “’It doesn’t make a difference.” … Pt continues to state
he has no drive and did not practice the homework.” (Id.).
Plaintiff participated in a therapy session at Terros on October 29, 2021. (ECF No.
14-9 at 140). The treatment notes from the October 29, 2021, session state:
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… Pt provided his homework and noted that he felt better when he was
working on the project that he’s been working on with his friend. Patient
indicated that he believes his world is messy and the whole world is messy
but did indicate if I could find the motivation but because of my condition.
… Patient indicated that he has a tendency at times to get flustered with
things and just give up. Patient indicated that he did not track the mood
section of the activity level. … Patient seems to be making progress ….
(ECF No. 14-9 at 141) (emphasis added).
A progress note from Southwest Network dated November 5, 2021, indicates
Plaintiff was “doing a bit better. He has been able to start doing things around his home.
He reported having some headache.” (ECF No. 14-10 at 42). Plaintiff was continued on
oxcarbazepine, mirtazapine, and venlafaxine. (ECF No. 14-10 at 45).
At a medical appointment at Terros on November 10, 2021, to treat an earache,
Plaintiff denied irritability and malaise. (ECF No. 14-9 at 135).
A Terros note dated November 15, 2021, states: “Clinician spoke to patient after
receiving a voicemail requesting to reschedule his appointment this week due to needing
to go out of town. Clinician thanked him for the call and congratulated him on his
project. Clinician and patient agreed to next session to be November 29 at 2:30 PM in
office.” (ECF No. 14-9 at 133) (emphasis added).
At a medical appointment at Terros on November 17, 2021, Plaintiff denied
headaches. (ECF No. 14-9 at 129).
Plaintiff participated in a therapy session at Terros on November 29, 2021. (ECF
No. 14-9 at 125). The notes state:
Patient presented as alert and oriented times four and euthymic mood.
Patient described that he’s been busy helping his friend with a project and
is been able to clean up his office and get things organized for his 3D
printer. …
Patient has made notable progress as evidenced by his mood and self-
report that he’s noticing a change. Patient also is making progress looking
at situations from alternative perspectives and not internalizing it as
evidenced by his chair story.8
8 A “chair story” in psychotherapy refers to the Empty Chair Technique, a Gestalt therapy
intervention that allows individuals to explore emotional conflicts, unresolved issues, and
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(Id.) (emphasis added).
A progress note from a Terros therapy session on December 13, 2021, states
Plaintiff was making “good progress,” and that there was a “notable change” in his mood
and/or affect. (ECF No. 14-9 at 116). The note from that date also states:
Patient reported that he was doing “good.” Patient reported that he is been
working on the project and been giving some feedback to the crews that are
installing the 3D printer for the project. Patient indicated that he notices
that he’s had a little struggle with sleeping lately. … Patient agreed that he
still feels depressed of little bit of the time but is feeling pretty good about
what he’s been working on.
(ECF No. 14-9 at 117) (emphasis added).
At a medical appointment at Terros on December 8, 2021, Plaintiff denied
headaches. (ECF No. 14-9 at 119-20).
Plaintiff attended a therapy session at Terros on January 3, 2022. (ECF No. 14-9
at 114). The notes state:
Patient reported that the holidays were sort of rough because it’s not his
favorite time of the year. … Patient indicated that his project is becoming
more like a job.
Patient processed through some of the frustrations with the project lead.
Patient indicated that he was able to not get easily angered after [an incident
with a medical lab]. … Patient seems to be making positive progress …
(ECF No. 14-9 at 114) (emphasis added).
Plaintiff filed his application for Social Security disability insurance benefits on
January 12, 2022.
Plaintiff attended a therapy session at Terros on January 21, 2022. (ECF No. 14-9
at 108). The treatment notes state:
complex relationships. The technique involves a client engaging in a conversation with an
imagined person or aspect of themselves, often represented by an empty chair. This interaction
typically involves a dialogue between two opposing voices—one representing the client’s own
feelings or thoughts, and the other representing an individual, part of the client’s personality, or a
situation that is causing distress. The essence of this technique lies in helping the individual
externalize their emotions, confront unresolved issues, and gain insights into their own thoughts
and behavior.
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Patient presented today indicating that his mood at the beginning of the
week “took a dump.” Patient described that he was having some issues with
his own 3D printer and then also running into some project issues with the
3D printer there, Patient indicated that his partner did vent to him about
the money but patient found this to be frustrating. … Patient indicated that
he did also decide to spend some time with his self today to work on some
of his own projects. … Patient indicated that he is trying to let things go,
Patient indicated that he has filed for disability and is feeling pretty positive
about it. Patient indicated he is chording [sic] with his SMI clinic to see if
there’s anything that they could provide.
(ECF No. 14-9 at 108-09) (emphasis added). Plaintiff denied headaches. (ECF No. 14-9
at 111).
At a Terros medical examination on January 21, 2022, Plaintiff denied fatigue and
headache. (ECF No. 14-9 at 110).
A progress note from Southwest Network dated January 28, 2022, indicates
Plaintiff reported “increase depression.” (ECF No. 14-10 at 47). The clinician increased
the dosage of venlafaxine. (ECF No. 14-10 at 50).
Plaintiff attended a therapy session at Terros on February 18, 2022. (ECF No. 14-9
at 99). The notes state there was a “[n]otable change” in mood and affect. (Id.). “Patient
reported that he has ‘had a horrible’ past few weeks. Patient described continuing
depression after an incident with his sister’s dog. Patient indicated that he struggles with
motivation.” (ECF No. 14-9 at 99). “Patient indicated that he struggles with judgment
from other people when going out with no evidence.” (ECF No. 14-9 at 100).
At a medical appointment at Terros on February 23, 2022, to review the results of
an abdominal ultrasound, Plaintiff was advised to lose weight. (ECF No. 14-9 at 95-97).
Plaintiff did not complain of headaches, and his medications at that time were Prilosec,
mirtazapine, venlafaxine, oxcarbazepine, ofloxacin (an antibiotic), vitamin D3,
atorvastatin, and lisinopril. (Id.)
Plaintiff attended a therapy session at Terros on February 28, 2022. The notes
state:
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… Pt reports feeling less bad. Pt reported he thinks it is because he started
working on a new design upgrade for his computer. Pt reported his
frustration with family members and communication issues that happened
during a birthday celebration recently. Patient indicated that he has had
trouble sleeping lately is unsure of the cause. Patient indicated that he still
feels like things have been so ingrained that he’s worried any therapy will
be effective.
(ECF No. 14-9 at 93-94) (emphasis added).
A progress note from Southwest Network dated March 10, 2022, reported Plaintiff
“continues with persistent depression-baseline,” and that Plaintiff “[s]ees a counselor at
Terros every 2 weeks.” (ECF No. 14-10 at 52). Plaintiff did not complaint of headaches
and he reported no changes or issues in his sleep and appetite. (Id.). Plaintiff was
continued on venlafaxine, mirtazapine, and oxcarbazepine. (ECF No. 14-10 at 55).
Plaintiff attended a therapy session at Terros on March 11, 2022. (ECF No. 14-9
at 91). The notes state:
Patient expressed frustration around the follow-up appointments he had for
blood work and a lack of communication between CSR’s.
Patient indicated that he believes that everything goes this way because it
always has. … Patient indicated that he often thinks that he is “a failure.”
Patient was able to identify positive qualities about himself that he’s
trustworthy, good mechanical design.
***
… Patient seems to be making no progress as evidenced by his automatic
belief system that this is who he is and he lives in the past. …
(Id.).
A clinic note from Terros dated March 30, 2022, states: “Clinician contacted
patient for missed individual session by phone. Patient indicated that he did leave a
message that he was unable to make the appointment due to not feeling well.” (ECF
No. 14-9 at 90).
Plaintiff attended a therapy session at Terros on April 12, 2022. The notes state:
Patient reported that he has had an increase of motivation as evidenced by
him being able to help out his niece with a door project and then also
working on his project for the printing machine with his friend and partner.
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… Clinician also reviewed EMDR therapy phases one and two. Patient
completed containment and calm place.9
… Patient seems to lack insight and imagination to successfully identify a
name for his calm space. …
(ECF No. 14-9 at 88).
Plaintiff attended a therapy session at Terros on April 26, 2022. The notes state:
… Patient presented today reporting that he has had “increased energy and
drive,” Patient indicated this is been related to working in the door for his
niece, working on the three [D] print printer and making progress on one of
the cars. Patient stated “yeah but still depressed.” Patient indicated that he
continues to feel sad and things are right. [sic] Patient agreed to participate
in a acceptance and commitment therapy metaphor. … Patient stated that he
believes that his issue is his thought and his brain.
… Patient seems to be making little progress as evidenced by his
perspective on prognosis and identity with Depression.
(ECF No. 14-9 at 87).
Plaintiff was seen for a physical examination at Terros on May 4, 2022; lab tests
showed prediabetes and hyperlipidemia. (ECF No. 14-9 at 77). There is no mention of
headaches. He was continued on atorvastatin and lisinopril, and he was advised to follow-
up with a dietician and to be physical active. (Id.). Plaintiff was also hypertensive. (ECF
No. 14-9 at 79).
A progress note from Southwest Network dated May 5, 2022, states Plaintiff
“continues with persistent depression-baseline.” (ECF No. 14-10 at 68). He was
continued on mirtazapine, oxcarbazepine, and venlafaxine, and the physician added
hydroxyzine pamoate (Vistaril) for anxiety. (ECF No. 14-10 at 71).
Plaintiff attended a therapy session at Terros May 10, 2022. At this session and at
the prior Terros sessions Plaintiff was seen by Mary Baum. The notes from May 10,
2022, indicate “minimal progress.” (ECF No. 14-9 at 75).
… Patient reported that things were so-so for him past couple weeks.
Patient indicated that [he] was able to do his homework of getting out more
and indicated that his depression and anxiety get away. … Patient indicated
9 EMDR therapy is a psychotherapy treatment involving guided eye movements to help
reprocess and integrate traumatic experiences.
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that he feels like counseling has helped him where he can vent and get
some feedback. …
(ECF No. 14-9 at 75-76).
At a Terros appointment on May 24, 2022, “Patient reported that his mood has
been “not so hot.” (ECF No. 14-9 at 71). “Patient indicated that he started in a medication
for anxiety and he notices that he felt off-balance and struggled with sleep so he stopped
taking it. … Patient indicated that he continues to struggle with motivation and is having
an “blah” mood. (ECF No. 14-9 at 72).
A progress note from Southwest Network dated June 3, 2022, indicates Plaintiff
had “stopped taking the hydroxyzine-got more anxious,” and this medication was
discontinued. (ECF No. 14-10 at 73, 76). Plaintiff reported no changes in sleep or
appetite, and there was no complaint of headache. (ECF No. 14-10 at 78-80).
In an activities of daily living report completed June 6, 2022, Plaintiff asserted his
“headaches cause me to miss a lot of work.” (ECF No. 14-8 at 38). With regard to his
daily activities, he reported he would stay “in bed watching videos,” feed his dogs twice a
day, prepare his own breakfast, and that “some evenings” he made dinner, sometimes for
his mother and himself and other times just for himself. (ECF No. 14-8 at 39-40). He
reported he was “eating less” since his illness began. (ECF No. 14-8 at 40). He reported
that sometimes he would go shopping with his mother. (ECF No. 14-8 at 39). Plaintiff
averred that prior to his illnesses he could “mainly work for short periods of time” and
take his dogs to the park, and that due to his illnesses his sleep schedule was “off.” (Id.).
He reported he could perform his own grooming and hygiene tasks, but that he did not
shower or shave “as much as I use to.” (Id.). Plaintiff did not need reminders regarding
his grooming or taking medicine. (ECF No. 14-8 at 40). Plaintiff also reported he did his
own laundry, cleaned his own room, and did yard work, such as trimming bushes and
spraying weeds, once per month. (Id.). He reported he went outside “once every two or
three weeks,” and that he could go out alone, and drive. (ECF No. 14-8 at 41). Plaintiff
stated he independently shopped in stores every two to three weeks for half an hour, and
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he shopped by computer for electronics “and misc other stuff.” (Id.). He was able to pay
bills and handle his own bank accounts. (Id.). His hobbies and interests were “watching
movies,” which he did every day, and he stated he was “very knowledgeable about 3D”
printing, which he did a “couple times a month.” (ECF No. 14-8 at 42). With regard to
social activities, he indicated he talked to his mother every day and communicated with
others via Discord.10 (Id.). Plaintiff stated he had problems getting along with others,
because of “anger issues or just anxiety,” and that he had “greatly withdrawn from just
about everything.” (Id.). He described his impediments to completing tasks and getting
along with others as due to his “depression, anxiety, and headaches I don’t complete tasks
in a timely manner.” (ECF No. 14-8 at 43). He also averred he could concentrate and pay
attention for “hours.” (Id.). Plaintiff stated he could follow written and verbal instructions
“very well,” and that he did not have “any issues” getting along with authority figures.
(Id.). He reported he had never been fired or laid off from a job because of problems
getting along with others. (Id.). He stated he did not handle stress “well at all,” but had
“no problem” handling changes in routine. (ECF No. 14-8 at 44).
In a headache questionnaire completed June 6, 2022, Plaintiff stated that he had
experienced “migraines” when he was “young.” (ECF No. 14-8 at 46). He averred the
headaches stopped when he was a teenager and “started up again” around 2003. (Id.). He
reported: “it is not known for sure” what caused the headaches, but “it is believed to be
caused from my depression & anxiety.” (Id.). He reported the headaches went “across my
face head and down the back of my neck,” and caused pain and nausea. (Id.). The
frequency of the headaches varied “week to week,” but occurred “three to four times a
week,” lasting “between a couple hours to a couple days.” (ECF No. 14-8 at 46-47).
Plaintiff stated that when he had a headache he tried to sleep. (ECF No. 14-8 at 47). He
reported that he had not found a medication or treatment that helped the headaches. (Id.).
Plaintiff reported that his prior work involved “most of” his time being “spent on the
10 Discord is a gaming and instant messaging and voice over Internet protocol (“VoIP”)
social platform, that allows communication through voice calls, video calls, text messaging, and
media.
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computer,” and that at times he would “assemble prototypes,” which did not require any
physical exertion, walking, standing, kneeling, crouching, crawling, or reaching. (ECF
No. 14-8 at 51-56). He stated his headaches came back in 2003, and that “since then I
have tried my best to continue working. Unfortunately they have progressively become
more frequent, and worst along with my depression. [sic]” (ECF No. 14-8 at 57).
Plaintiff participated in a therapy session at Terros on June 23, 2022. (ECF No.
14-9 at 64). Plaintiff’s mood was “about the same for me.” (Id.). This was his first session
with provider David Jones. The “Problem List” states:
1. Most days are with high depression and anxiety.
2. Anxiety comes from a feeling of being judged by strangers.
3. I live in the past[.] This drives my depression.
4. I have been seeing counselors and taken medications for most of my life.
5. I am out of work.
6. I am filing for disability.
7. I have headaches that has resulted in my losing many jobs because of
missing work.
8. Psychosomatic headaches.…
10. I am more comfortable with depression and anxiety than with the work
to recover.
***
Most of my recent therapy was venting.
(ECF No. 14-9 at 65) (emphasis added). Jones advised Plaintiff to become “familiar”
with David Burns’ “Feeling Good” (a book about cognitive behavior therapy) and Jones
reported he had “oriented [Plaintiff] to the cognitive model and to the cognitive model of
anxiety,” and the “Action Plan” was to “[i]dentify [Plaintiff’s] over-estimations of danger
and his under-estimations of ability to cope.” (Id.).
A Terros progress note dated August 11, 2022, indicates Plaintiff “[f]orgot to do
his homework.” (ECF No. 15 at 192-93).
Plaintiff participated in a mental health session at Terros on August 23, 2022.
(ECF No. 15 at 190). He reported having a “[s]tressful week.” (Id.).
Plaintiff was seen at Southwest Network on August 26, 2022. (ECF No. 14-10
at 78). The notes state: “He has been doing well at baseline. He has baseline depression.
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Lately [sic] he was stressed because he purchase[d] water softener and water heater …
and the items were defective. He [is] still waiting for them to [fix] the problem. …” (Id.).
Plaintiff was seen at Terros for a general medical examination on August 26,
2022. (ECF No. 15 at 185). Plaintiff did not complain of headaches. (ECF No. 15 at 185-
89).
On September 7, 2022, Dr. Coehlo, Psy.D. (a doctor of psychology) conducted an
independent mental health examination of Plaintiff at the behest of Arizona Department
of Economic Security Disability Determination Services. (ECF No. 14-9 at 169-81). Dr.
Coehlo’s notes state:
MEDICATIONS:
Venlafaxine, oxcarbazepine, lisinopril, vitamin D3, atorvastatin,
fenofibrate, Prilosec, and mirtazapine.
GENERAL OBSERVATIONS:
Mr. Dirk Vanmerkestyn was referred for a psychiatric consultation
including detailed mental status with report by disability examiner …of the
Arizona Department of Economic Security. Mr. Vanmerkestyn indicated
this is an initial application for social security disability benefits. He drove
himself and arrived on time for his appointment. He is a male who is taller
than average, who is overweight. … There are no obvious deficits observed
with his hearing during this exam; however, he does report he is noticing
some diminished hearing loss. Mr. Vanmerkestyn is casually addressed and
adequately groomed. He is forthcoming and cooperative during the
evaluation. He ambulates independently without gait disturbance. He
demonstrates fleeting eye contact with this examiner. He does appear to be
slightly low in his energy levels and does appear to be nervous.
INFORMANT:
Information was obtained through a clinical interview with Mr.
Vanmerkestyn, record review and behavioral observations. Attached
medical records from Terros indicate that the claimant has previously been
diagnosed with major depressive disorder, recurrent, severe without
psychotic features. Additional documentation from Redemption Psychiatry
indicates that the claimant was seen in 2021 and that he has been diagnosed
with major depressive disorder and an unspecified anxiety disorder.
CHIEF COMPLAINTS
According to referral documentation, Mr. Vanmerkestyn is alleging
disability at this time due to the following: Severe depression, social
anxiety, and headaches. Mr. Vanmerkestyn is currently seeing a therapist
every 2 weeks through Terros; moreover, he is seeing a psychiatrist through
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the Southwest Network every 3 months for medication management. Mr.
Vanmerkestyn reports that he has very limited social support system. He is
currently residing with his mom. He had 1 friend who recently moved away
to go to school. He had a falling out with a friend who resides across the
street. He spends most of his time in the house and does not interact much
with others.
Regarding his mental health history, Mr. Vanmerkestyn reported that when
he previously resided in Illinois, he saw some other mental health
practitioners; however, reportedly records are not available as these
professionals are no longer practicing. Mr. Vanmerkestyn reports he
probably started seeing his first mental health provider as a teenager. At
this time, he reports that his depression is constant and he stated “I have a
constant heavy feeling like I’m not good enough.”
He reports low levels of self-esteem and negative intrusive thoughts. He
tends to dwell on negative things from his past. There are some days that he
is able to get up and have breakfast, feed the dogs, but then returns to bed
and spends a lot of time watching anime or YouTube videos. He reports
low levels of energy and motivation. He does not experience particular
anxiety when he spends time with people that he knows, rather he is more
uncomfortable meeting new people and being in large crowds and groups
of people in which he feels that other people are looking at him or judging
him. He is spending less time at the dog park and attributes this to his
depression and his anxiety. He reports that he has rare moments of joy. He
may feel good when he accomplishes tasks, but stated “I don’t remember
the last time I was happy.” He is generally a planner and stated “I jump in
with 2 feet.” However, he quickly becomes overwhelmed and will cast
things aside and not finish them, therefore reporting poor task persistence.
He reports he has been told by mental health and treating professionals in
the past that his constant headaches are very much related to his
depression. He has started jobs in the past and the stress associated with
working has caused an exacerbation of depression and headaches. He
reports he saw some type of headache specialist in Illinois. If he awakens
with a headache, likely he will return to sleep.
Mr. Vanmerkestyn has never been hospitalized for psychiatric reasons. He
reports that he is depressed all of the time, but that his medications keep
him more stable. He reports a history of 2 suicide attempts as a teenager.
He denied current suicidality. Across the board, he feels helpless, hopeless,
worthless, struggles with self-esteem, and low levels of energy, motivation
and headaches. There is no history of psychotic thought processes including
hallucinations or delusions. He denied symptoms indicative of bipolar
disorder.
Regarding his anxiety, Mr. Vanmerkestyn reports that he tends to go to
worst-case scenarios in his mind and that he has racing thoughts. …
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ACTIVITIES OF DAILY LIVING:
Mr. Vanmerkestyn reports difficulty falling asleep. He may remain awake
until the early morning hours due to his racing thoughts or if he forgets to
take his medications. Despite feeling tired when he awakens in the
morning, he does not nap. He can go to the store briefly and pick up a few
items, especially if he is helping his mother. Occasionally, he can go to the
store alone. He tends to get in and out of the store quickly; however, more
often than not, he goes to the store with his mom. Mr. Vanmerkestyn
reports that he is capable of handling financial affairs independently,
including organizing, prioritizing or paying bills in a timely manner. He
denies that he has any significant problems providing transportation for
himself. He tends to shower when he is leaving the house or he has an
appointment. On average, he is only showering once a week. He will wear
the same clothing for several days in a row. He does report that low levels
of energy and motivation contribute to him not showering and shaving
more frequently. A couple of nights a week, he can assist with some
cooking and grilling. He is able to engage in quick and simple meal
preparation. He and his mother do keep up with the dishes. However, he
reports that he has been not keeping up with vacuuming, mopping and
sweeping and that he needs to vacuum his room at this time due to a large
layer of dog fur. When he is up to it, he enjoys engaging in mechanical
designing such as using a 3-D printer. His social support system appears
very limited. He does not attend religious activities or volunteer at this
time. He spends most of his time in the house. Cognitively speaking, he
reports he is able to concentrate on mechanical issues and things that are
of interest to him. He stated “I’ve always had a bad memory.” He does
remember to take his medications regularly and uses the calendar on his
phone to remind him of upcoming appointments.
HISTORY:
Mr. Vanmerkestyn reports that he has an associate’s degree in science. He
reports that as a young person, he suffered from headaches, however, that
those headaches dissipated for a period of time. It was not until he found
himself in a difficult work environment that the migraines returned. He
subsequently developed vertigo and doctors could not find any medical
basis for his condition. He does not smoke cigarettes. He has suffered from
a few brief losses of consciousness when he was younger. There is no
history of seizures or strokes. … Mr. Vanmerkestyn is not currently
employed. He estimated that the last time he worked was 18 to 24 months
ago as a CAD drafter. He worked with 3 engineers and did drawings for
them. He was there less than a year in duration. He was let go due to
missing work due to his headaches. He reported that despite them
attempting to accommodate him, it simply was not sufficient. He believes
that his depression and associated headaches are his biggest obstacle to
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employment at this time. He reports that he has been told that his
headaches are “psychosomatic.” …
MENTAL STATUS:
Mr. Vanmerkestyn presents with depressed mood, low levels of energy and
anxiety. He has constricted affect. His behavior is cooperative. His speech
and language are within the normal limits, and no significant expressive or
receptive language problems are noted. Thought processes are organized,
logical, coherent and easy to follow. There are no signs of perceptual
abnormalities including hallucinations or delusions. He denied present
suicidal/homicidal ideation, gestures, plans or intent. Mr. Vanmerkestyn
was oriented to person, place, time and situation. Attention and
concentration were adequate. Fund of information is fair. … Likely, he is
functioning at least in the average range of intellect. Insight and judgment
appear to be intact. He earned 30/30 on the Folstein mini-mental status
portion of the evaluation. Current test results do appear to be an accurate
reflection of his current level of functioning.
DIAGNOSES:
1. Major depressive disorder, recurrent, moderate.
2. Generalized anxiety disorder.
PROGNOSIS:
The claimant’s prognosis is fair. The claimant had been meaningfully
employed in the past. He last worked 18 to 24 months ago. He was let go
from his position due to missing work due to his headaches. He reports that
mental health professionals have told him that his depression and his
anxiety are very much related to his headaches. He is currently seeing a
psychiatrist for outpatient medication management and an individual
therapist at this time.
(ECF No. 14-9 169-72).
Dr. Coehlo prepared a Medical Source Statement of Ability to do Work-Related
Activities (Mental). She opined Plaintiff had no restrictions in his ability to understand,
remember, and carry out instructions. (ECF No. 14-9 at 173). She further opined that
Plaintiff was moderately limited in his ability to interact appropriately with supervisors,
co-workers, and the public, and to respond to changes in a routine work setting. (ECF No.
14-8 at 174). She indicated there were no medical signs or laboratory findings to support
any limitations in this area of functioning. She did not find any limitations in Plaintiff’s
ability to concentrate, persist, or maintain pace, or to adapt or manage himself. (Id.).
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Plaintiff was seen by Jones at Terros on September 8, 2022. (ECF No. 15 at 183).
He reported “Situations have been driving my anxiety,” and the stated agenda for the
appointment was “Matters concerning my disability claim.” (Id). Jones discussed
Plaintiff’s cognitive “formulations” and “distortion,” and Plaintiff practiced “replacing
distorted thoughts” with positive, adaptive, and realistic thoughts. (ECF No. 15 at 184).
In September of 2022, as part of the initial determination regarding Plaintiff’s
application for benefits, Dr. Eblen, a psychologist and non-examining reviewing
physician, opined Plaintiff’s psychiatric symptoms might impact aspects of persistence
and pace, and Dr. Eblen opined Plaintiff would actually benefit from a limited social
contact work setting. (ECF No. 14-4 at 7-8.)
Plaintiff’s claim for Title II benefits was denied initially on September 14, 2022
(ECF No. 14-4 at 2-11).
On September 26, 2022, in a report on appeal from the denial of benefits and after
obtaining counsel, Plaintiff averred that on April 1, 2022, after filing his January 13,
2022, disability report, he had “[d]ecreased abilities to perform all activities in daily
living in general,” although he did not have any new physical or mental conditions. (ECF
No. 14-8 at 59). He noted his medications at that time were desvenlafaxine (“Pristiq”),
mirtazapine, and oxcarbazepine, all used to treat his depression. (ECF No. 14-8 at 62).
Plaintiff canceled a scheduled session of mental health counseling at Terros on
September 29, 2022, reporting he was “feeling ill.” (ECF No. 15 at 182). A Terros
contact note dated September 29, 2022, indicates Jones called Plaintiff “because of the
canceled scheduled session of individual counseling. Patient did not answer the phone.”
(ECF No. 15 at 180).
Plaintiff was seen for mental health counseling at Terros on October 13, 2022.
(ECF No. 15 at 172). He reported he was “going through a very low point. I was notified
that my disability claim was denied. … I procrastinate and feel like I fail. I have been
thinking of fixing up the motorcycle. I am not taking initiative to be more social.” (Id.).
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Plaintiff was provided with cognitive therapy regarding his negative thoughts and advised
to keep a mood log. (ECF No. 15 at 173).
Plaintiff attended a Terros mental health session on November 3, 2022, to discuss
his disability paperwork. (ECF No. 15 at 170). Plaintiff stated his mood was “poor,” and
that he was “not feeling very useful or that I am fulfilling my obligations in life.” (Id.).
Plaintiff had been assigned to read a chapter in “Mind Over Mood” and to do “written
exercises.” (ECF No. 15 at 171).
David Jones, a Licensed Clinical Social Worker and Plaintiff’s mental health care
provider at Terros, completed a medical assessment of Plaintiff’s ability to perform work-
related activity on November 3, 2022. (ECF No. 14-8 at 178-81). Jones noted he had
been treating Plaintiff for four months, since June 23, 2022. (ECF No. 14-8 at 178). Jones
listed Plaintiff’s diagnosed psychological impairments as “low interest & loss of
motivation, feelings of hopelessness & strong discouragement, worry & rumination,
catastrophizing & fortune telling, mindreading & all-or-nothing thinking.” (Id.). Jones
reported Plaintiff’s symptoms as “poor sleep, poor concentration, restlessness, irritability,
feelings of dread, not bathing or changing clothes, social isolation, inaction, not getting
out of bed.” (Id.). The “objective evidence,” i.e., (“diagnostic findings, psychological
examination findings, etc.”) “supporting” this diagnosis were reported as “PHQ-9-22
Severe – GAD7-13 Moderate.” (Id.). The doctor opined Plaintiff had moderate limits in
understanding and remembering simple instructions, and moderately severe limits in
remembering work-like procedures and understanding and remembering detailed
instructions. (Id.).
Jones opined Plaintiff had moderately severe limits in interacting with the general
public and getting along with co-workers or peers, and severe limits in the areas of “ask
simple questions or request assistance,” “accept instructions and respond appropriately to
criticism from supervisors,” “maintain socially appropriate behavior,” and “adhere to
basic standards of neatness and cleanliness.” (ECF No. 14-8 at 179). Jones found
moderately severe limits in responding appropriately to changes in the work setting and
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severe limits in “travel to unfamiliar places or use public transportation” and “set realistic
goals or make plans independently of others.” (Id.). With regard to the ability to
concentrate, persist, or maintain pace, Jones found moderately severe limits with
maintaining attention and concentration, and severe limits with regard to Plaintiff’s
ability to perform activities within a schedule, maintain regular attendance, and be
punctual, and complete a normal workday and workweek without interruptions from
psychologically-based symptoms. (ECF No. 14-8 at 180). Jones assessed moderate limits
in Plaintiff’s ability to sustain a routine without supervision, work in coordination with
others, and make simple work-related decisions. (Id.). Jones opined the impairments
began in 2003, that the limitations had lasted or could be expected to last for 12 months,
and that Plaintiff was likely to miss work more than three times a month due to these
impairments. (ECF No. 14-8 at 181). Jones also commented: “Headaches are not fully
treatable with medications. Significantly impairs his ability to function. Feelings of
depression compound his problem. He stays home. Thoughts Snowball, worry of letting
down coworkers.” (Id.).
A Terros contact note dated November 3, 2022, indicates Jones emailed Plaintiff
with the assessment of Plaintiff’s abilities, and advised Plaintiff should let Jones “know if
it seems accurate and correct.” (ECF No. 15 at 164).
Plaintiff participated in the preparation of an integrated service plan at Terros on
November 9, 2022. (ECF No. 15 at 194). Plaintiff expressed a goal of “Get past
depression so that I can stop hiding from outside.” (Id.). A screening pursuant to the
GAD-7 resulted in a score of 13, or moderate anxiety, and a screening pursuant to the
PHQ-9 resulted in a score of 18, or moderately severe depression. (ECF No. 15 at 197).
Plaintiff conducted a general medical telemedicine visit with a Terros nurse
practitioner on November 28, 2022. (ECF No. 15 at 158). The notes indicate Plaintiff’s
attorney had recommended Plaintiff see a specialist for headache. (Id.). The Terros nurse
practitioner provided contact information for a neurologist. (ECF No. 15 at 160-61).
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Plaintiff was seen at Southwest Network on November 29, 2022. (ECF No. 14-10
at 88). The progress note states: “He has been stable at baseline. He has baseline
depression. He is applying for disability. … presently unemployed … Sleep and appetite
no changes.” (Id.). The examiner found Plaintiff’s thought process logical and coherent,
he used normal language, his affect was appropriate, and his concentration, insight, and
judgment were good. (ECF No. 14-10 at 90). Plaintiff was continued on mirtazapine and
venlafaxine. (ECF No. 14-10 at 90-91). He did not complain of headaches.
A case manager with Southwest Network contacted Plaintiff by telephone on
December 2, 2022, to “assess wellbeing.” (ECF No. 15 at 38). The notes state:
Dirk sounded a little depresse[d] but overall pretty good. CM [case
manager] inquired if there have been any new developments and Dirk said
there has been nothing and that he is doing ok. Dirk told this CM to have
happy holidays and CM thanked him and told him the same, thanked him
for his time and to call us if he needs anything.
(Id.).
Plaintiff was seen for counseling at Terros on December 5, 2022. (ECF No. 15
at 155). He reported “this time of year is particularly difficult,” and that “watching the
word crumble is hard.” (Id.). He also reported feeling “ashamed when I asked my mother
if I could borrow money.” (Id.). (ECF No. 15 at 156).
The records from Southwest Network include a data assessment notation dated
December 7, 2022. (ECF No. 15 at 39). The record states Southwest Network had
“received call from [Plaintiff] who needs help with benefits,” and an appointment was
scheduled for December 13, 2022. (Id.). A specialist assisted Plaintiff with submitting an
application for food stamps. (ECF No. 15 at 40).
Plaintiff contacted Terros on December 19, 2022, advising he was “feeling sick
and may not attend” an appointment the following day. (ECF No. 15 at 153).
The records from Southwest Network include a note dated January 9, 2023, when
a case manager “attempted to contact Dirk. He was unable to answer the phone” and the
case manager left a message. (ECF No. 15 at 42).
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Plaintiff’s Terros case manager tried to contact Plaintiff by phone on January 17,
2023, and when the call was not answered the case manager left a message. (ECF No. 15
at 43-44). Plaintiff returned the call, and the notes indicate he “was positive and clear …
and sounded in a good mood.” (ECF No. 15 at 45).
In a function report dated January 17, 2023 (ECF No. 14-8 at 68), Plaintiff
reported that when he got “a headache or wake up with one it is extremely painfull. [sic]
It at minimum can take hours to go away and has at times taken days. Medications such
as Advil and similar have little effect.” (Id.). With regard to his daily activities, Plaintiff
stated: “I lay in bed either watching movies and or videos on my computer. Sometimes I
try learning new things like computer programming or printed circuit board design.”
(ECF No. 14-8 at 69). He reported taking care of his dogs, including walking them
around the block or taking them to a dog park. (Id.). He reported his illness affected his
sleep, averring he “bounce[s] between insomnia to sleeping 12 hrs plus. My sleeping
schedule is all messed up currently I fall asleep around 2 a.m. and wake up around 12 or
1 p.m.” (Id.). He reported he “live[d] in shorts or T-shirt,” and sometimes went “weeks
without showering” or shaving. (Id.). Plaintiff did not need reminders to take care of his
personal needs and grooming, or to take his medicine. (ECF No. 14-8 at 70). He prepared
his own meals, and stated there had been no changes in his cooking habits since his
illness began. (Id.). Plaintiff reported he did laundry, household repairs, and some yard
work, with his mother “pushing” him “to do required house or yard work.” (Id.). He
stated he went outside “maybe once a week,” and that he could go out alone and drive.
(ECF No. 14-8 at 71). Plaintiff also stated he shopped in stores, and by computer, for
food, dog supplies, and necessities. (Id.). He reported he was very good at 3D design and
printing, and that he did this “one to two times a week,” which activity was “greatly
reduced” since the onset of his illness. (ECF No. 14-8 at 72). Plaintiff engaged in video
chatting and email with others, in addition to playing “virtual reality video game[s].”
(Id.). With regard to spending time with others, he reported he would “talk, work on
projects,” and “play video games” with others “once a week, usually less.” (Id.). He
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reported a “huge reduction of any personal activities,” but also stated he could go out
unaccompanied and that he did not have any problems getting along with family, friends,
or neighbors. (Id.). He reported he did not have physical limitations and he could walk for
hours, and that he followed written and verbal instructions “very well.” (ECF No. 14-8
at 73). He reported he had no issues regarding getting along with authority figures. (Id.).
In response to the question “How well do you handle stress,” Plaintiff replied “Horrible,”
and he stated he handled changes in routine “medium.” (ECF No. 14-8 at 74). Plaintiff
averred he did not experience any side effects from his medications, stating:
All of my life I have had depression and even headaches. But in the last
years both have become much more debilitating. Unfortunately these forms
are more designed for physical versus mental disabilities. Physically I can
perform, but between the depression and the headaches it becomes almost
impossible to complete my tasks in a timely manner.
(ECF No. 14-8 at 75).
Plaintiff was seen by Dr. Woods at Phoenician Neurology on January 10, 2023, for
evaluation of “migraine” headaches. (ECF No. 15 at 13). Plaintiff reported an onset of the
“problem” in 2004, and also reported the problem was “worsening.” (Id.). The notes
state:
[Plaintiff] states that he has had longstanding migraine headaches that have
been progressively worsening since 2004. He notes that initially they were
about twice a week with associated vertigo. He now notes that they can last
as long as a week. He notes that the vertigo has resolved, but the headaches
continue to linger. He notes that he has tried multiple treatment regimens in
the past without much relief. He states that the symptoms have become so
severe that he is unable to work secondary to the headaches.
(Id.) (emphasis added). Plaintiff reported the headaches were severe “at times,” that they
were aggravated by stress, and the only “[r]elieving factor” was “Advil.” (Id.). Plaintiff
indicated there had been no diagnostic testing since 2004. (Id.). Plaintiff reported his
medications as oxcarbazepine, atorvastatin, vitamin D, lisinopril, mirtazapine, meclizine
(an antihistamine), duloxetine, TriCor (for cholesterol and triglycerides), Lexapro,
lansoprazole (a proton pump inhibitor), and carvedilol. (ECF No. 15 at 13-14). He
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reported his “current problems” as including depression, gastroesophageal reflux, obesity,
headache, chronic migraine, dizziness, sleep difficulties, a deep vein blood clot of the
lower left extremity, high blood pressure, high cholesterol, anxiety, arthritis, and back
pain. (ECF No. 15 at 14-15). Plaintiff reported using alcohol in the last year. (ECF No. 15
at 15). Plaintiff was alert and oriented, his mood was euthymic and his affect reactive.
(Id.). His concentration and attention were normal. (Id.). All findings regarding his
cranial nerves were normal. (ECF No. 15 at 16). A motor examination showed normal
muscle bulk and tone and full strength in all extremities, with some diminished reflexes.
(ECF No. 15 at 16). The doctor noted “General medical examination was unremarkable.
Patient was in no distress.” (Id.). Plaintiff reported ringing in the ears, knee pain, itching,
headaches, insomnia, and depression. (Id.). The doctor ordered MRIs of the cervical
spine and brain. (Id.).
Plaintiff was seen at Terros for mental health therapy on January 11, 2023. (ECF
No. 15 at 149). The therapist noted “[s]ome progress.” (Id.). Plaintiff stated: “I have been
considered medication resistant. Medications only keep me from being on a roller
coaster.” (Id.). Plaintiff was counseled to read “Understanding Your Depression.” (Id.).
Plaintiff was provided a letter recommending he be excused from jury duty because his
mental health symptoms were “debilitating.” (ECF No. 15 at 150).
An MRI of Plaintiff’s cervical spine was performed at Arizona Diagnostic
Radiology on January 21, 2023, at the request of Dr. Woods, for history of “headache.”
(ECF No. 14-10 at 94). The 2023 MRI was compared with an MRI of Plaintiff’s cervical
spine taken July 2, 2004. (Id.). The MRI revealed alignment and marrow signal were
normal. Plaintiff’s cervical cord was “intrinsically normal,” and there were “no signal
abnormalities;” the “cericomedullary junction” and “cerebellar tonsils” were normal.
(Id.). The spinal column at C1-C2, C2-C3, C3-C4, was normal but for a “2 mm disc
bulge with no canal stenosis and no foraminal stenosis” and “no facet degeneration.”
Imaging of the C4-C5 showed a 1 mm posterior central disc protrusion with no canal or
foraminal stenosis, and mild facet degeneration on the right, and none on left. (Id.). There
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was “moderate” loss of disc height at C5-C6 and C6-C7, mild narrowing at C5-C6,
severe narrowing at C6-C7, but no facet degeneration. At the C7-T1 there was a 1 mm
disc protrusion with no canal or foraminal stenosis. (Id.). The report noted: “Interval
progression of degenerative disc disease at C5-C6 and C6-C7, compared to 7/2/2004,
now with severe bilateral foraminal stenosis at C6-C7 and presumed impingement of the
exiting C7 nerve roots. Moderate facet degeneration bilaterally at C7-T1 has also
progressed in the interval.” (Id.).
An MRI of Plaintiff’s brain was performed by Arizona Diagnostic Radiology, at
the behest of Dr. Woods, on January 21, 2023. (ECF No. 15 at 96). The results were
compared with an MRI performed August 18, 2004. (Id.). The findings were all reported
as “normal.” (Id.).
A progress note from Southwest Network dated January 27, 2023, indicates a
telemedicine “follow up visit.” (ECF No. 15 at 56). Plaintiff reported
… persistent depression, triggers are when he start thinking about his past.
[Losing] a girlfriend and the loss of his job. … Now he is depressed all the
time. … At home he is learning computer programing and working on
designs on a 3D printer he has a hx of headaches and he is seeing a
Neurologist … Sleep and appetite no changes … Sees a counselor at Terros
every 2 weeks.”
(Id.).
Plaintiff was seen at Terros on February 1, 2023. (ECF No. 15 at 147). He
reported “failing to do my homework.” (Id.).
A case manager at Southwest Network called Plaintiff on February 2, 2023, “to
assess wellness and check if the clinic could do anything for him at this time.” (ECF No.
15 at 46). Plaintiff did not answer the phone. (Id.). The case manager called Plaintiff
again on February 7, 2023. (ECF No. 15 at 47). The notes state Plaintiff “said that things
are going pretty much the same and there is nothing new.” (Id.).
On February 8, 2023, a case manager at Terros phoned Plaintiff to encourage
Plaintiff to make continued effort on his “action plan,” even if the effort was intermittent.
(ECF No. 15 at 143).
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Plaintiff cancelled a mental health appointment at Terros on February 15, 2023,
due to a “debilitating headache.” (ECF No. 15 at 142).
Plaintiff was seen by Dr. Woods at Phoenician Neurology on February 21, 2023.
(ECF No. 15 at 9). The notes indicate Plaintiff was seen for “follow-up migraine
headaches. MRI of the brain recently obtained showing no major abnormalities. MRI of
the cervical spine however did show severe neuroforaminal stenosis at C6-C7. Still
continues to note headaches.” (Id.). Plaintiff was not taking any prescribed medication for
headaches, nor did he report symptoms of migraine, such as aura or sensitivity to light or
sound, or nausea (Id.). The record noted a diagnosis of, inter alia, chronic headache,
“reported by patient,” and chronic migraine without aura without status migrainosus and
not intractable, “reported by patient,” and migraine, “reported by patient.” (ECF No. 15
at 10). A “[g]eneral medical examination was unremarkable. Patient was in no distress.
Cardiovascular examination shows peripheral pulses were intact throughout and regular.”
(Id.). Plaintiff reported ringing in the ears, knee pain, itching, headaches, insomnia, and
depression. (ECF No. 15 at 11). Dr. Woods assessed neuroforaminal stenosis of the
cervical spine, and determined to “hold off on any further treatment for now.” (Id.). The
doctor also made an assessment of “headache,” condition “chronic,” but did not diagnose
migraines or order any medication or other treatment for headache. (Id.).
Plaintiff was seen at Terros on March 1, 2023. (ECF No. 15 at 138). The notes
indicate “some progress.” (Id.). The notes state: “Update: I am working more on my
project, my 3D printer. I have been minimizing my down time. Agenda: I don’t know
how to fill my time after I complete my current projects.” (Id.).
At a Terros mental health appointment on March 15, 2023, it was noted that
Plaintiff made “some progress.” (ECF No. 15 at 135). He reported: “Printing attempts
failing and damaging the printer,” and “‘This is the way my life will continue to go.’”
(ECF No. 15 at 136). He was sad and frustrated. (Id.). He described his subsequent
behavior as “I quit working and lay in bed and watch TV. That is not enjoyable.” (Id.).
Cognitive therapy was employed to facilitate different thinking. (Id.).
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Plaintiff had a mental health session at Terros on March 29, 2023. (ECF No. 15
at 127). He reported he had let his medications “run out.” (Id.). He reported a dream
“where I was rejected by a woman,” and reported thinking that he was “undesirable” and
would “be alone forever.” (ECF No. 15 at 128). He was sad. (Id.). He reported his “recent
dating experiences have been disastrous,” although he had not “tried dating since [he]
moved to Arizona.” (Id.).
A Southwest Network progress note dated March 31, 2023, indicated Plaintiff
reported “persistent depression baseline.” (ECF No. 15 at 60).
Plaintiff was seen at Terros for a medical examination on April 4, 2023. (ECF
No. 15 at 122). He was encouraged to monitor his diet and encouraged to exercise. (Id.).
Plaintiff was seen at Terros on April 12, 2023, reporting that he had learned a
friend had passed away. (ECF No. 15 at 118). He was encouraged to keep a diary of
positive and negative events. (ECF No. 15 at 119).
Plaintiff cancelled a mental health appointment at Terros on April 26, 2023,
because he was not “feeling well.” (ECF No. 15 at 117).
Plaintiff was seen at Terros for a medical examination via telehealth on May 9,
2023. (ECF No. 15 at 110). He complained of an earache and requested allergy
medication. (Id.).
Plaintiff was seen at Terros on May 10, 2023. (ECF No. 15 at 107). He reported he
had not “been doing a whole lot,” and thinking “I am powerless.” (Id.). “In session, [he]
took his negative events and reframed them from the negative and entirely powerless
conclusion.” (ECF No. 15 at 108). The effort was to change Plaintiff’s belief to thinking
that “[t]here are no real advantages to believing that I am powerless.” (Id.).
Plaintiff was seen at Terros on May 24, 2023, with the notation of “minimal
progress.” (ECF No. 15 at 105). He reported his headaches had “slightly subsided.” (Id.).
A case manager with Southwest Network contacted Plaintiff on June 2, 2023.
(ECF No. 15 at 50). Plaintiff was “overall in positive space and said that things aren’t
great but not terrible,” and he “declined any further clinic services at this time.” (Id.).
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Plaintiff was seen at Terros on June 7, 2023. (ECF No. 15 at 103). The notes
indicate “some progress.” (Id.). The notes state:
… Reasons to procrastinate and not take action today. Hot, frustration of
things not going well, don’t have time. Dirk made the following notes for a
coping card.
“… I did everything I could with the equipment that I could afford. I got it
working. I just don’t have the final information to get it printing both
materials together. I am able to learn stuff on my own. I know that if I
could get myself feeling better about myself I could fare better. … There is
much that I have learned from my experience. It is not just me. Others play
a role.”
(ECF No. 15 at 104).
In June of 2023, as part of the agency reconsideration regarding Plaintiff’s
application for disability benefits, Dr. Torres reviewed the medical record, including the
MRI reports, and noted that other than nausea, the record contained “no mention of any
other [symptoms] consistent with migraines.” (ECF No. 14-4 at 14). Dr. Stern, a
psychologist, reviewed the record and applied the Psychiatric Review Technique criteria
and opined that none of the ”C” criteria were present, and that Plaintiff had moderate
limitations with regard to interacting with others and mild limitations with regard to
concentrating, persistence, or maintaining pace. (ECF No. 14-4 at 15). Dr. Stern agreed
with Dr. Coelho’s assessment, and opined that Plaintiff would be limited to jobs requiring
no more than occasional interaction with the public, but otherwise able to work. (ECF
No. 14-4 at 16-19).
Plaintiff’s application for Title II benefits was denied on reconsideration on
June 15, 2023 (ECF No. 14-4 at 12-20).
Plaintiff was seen for a mental health session at Terros on June 21, 2023. (ECF
No. 15 at 101). He stated he had “been going through a low point,” and he felt “a heavy
weight on my shoulders.” (Id.). He did not do “any of the homework.” (Id.). Plaintiff
reported “no drive to do anything. I am in a low point in my mood cycle. Nothing will
change. Things will get worse if I pile on other issues. When my mother passes I will be
homeless.” (ECF No. 15 at 102).
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Plaintiff was seen at Terros for a medical evaluation on June 23, 2023. (ECF
No. 15 at 96). He asked for “bloodwork” and reported he was experiencing arm pain.
(Id.). The notes state: “He recalls engaging in outdoor activities about a month ago,
which he believes may have resulted in a pulled muscle. Dirk specifically complains of
pain in his right elbow, and tennis elbow is suspected.” (Id.). Plaintiff was “advised to
rest the affected arm and avoid activities that may exacerbate the pain. (Id.) (emphasis
added). Plaintiff denied headache. (ECF No. 15 at 97).
Plaintiff was seen at Terros on July 12, 2023. (ECF No. 15 at 94). His progress
was noted as “minimal.” (Id.). The notes state: “Second attempt to renew his disability
was denied.” and “Did not remember to read the coping card. Painted the door.” (Id.). No
medical conditions, such as headache, were noted. (Id.).
In a report submitted to the Commissioner on July 18, 2023, Plaintiff stated there
had been no change for better or worse since September 26, 2022, the time of his last
disability report, but he had a new condition, i.e., he “was told” he had “arthritis” in his
neck on or about February 21, 2023. (ECF No. 14-8 at 79). He reported he would be seen
by Dr. Friday at Redemption Psychiatry in 2023. (ECF No. 14-8 at 80). He further stated
he had been or would be seen at Phoenician Pain Management in 2023. (Id.). He also
reported he had “been unable to get motivated and follow through on tasks and projects.”
(ECF No. 14-8 at 84).
A case manager with Southwest Network called Plaintiff on August 2, 2023, to
offer services. (ECF No. 15 at 51). Plaintiff was “polite,” and “seem[ed] disappointed
that his old [case manager was] no longer with the company but understood” the new
case manager was “willing to help.” (Id.).
Plaintiff cancelled an appointment at Terros on August 2, 2023, stating he had a
headache. (ECF No. 15 at 92).
Plaintiff was seen by Jones at Terros on August 23, 2023. (ECF No. 15 at 89). The
session focused on Plaintiff’s relationships with two girlfriends from his youth. (Id.).
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On September 6, 2023, a case manager and nurse practitioner with Southwest
Network met to review “appropriate services” for Plaintiff. (ECF No. 15 at 54). Plaintiff
conveyed he was “interested in counseling” and agreed he could be referred to the on-site
therapist. (Id.). In a conversation with the on-site therapist on September 8, 2023,
Plaintiff relayed that he would “discontinue seeing his current therapist ….” (ECF No. 15
at 55). The note indicates Plaintiff “[s]ound[ed] oriented, has some insight, answered
questions, normal tone of voice.” (Id.).
Plaintiff was seen by Jones at Terros on September 20, 2023. (ECF No. 15 at 83).
A PHQ-9 mental health questionnaire was conducted resulting in a score of 20, and a
GAD-7 anxiety assessment resulted in a score of 13. (Id.). Plaintiff reported his “level of
stress feels normal and is a reaction to my 3D printer. I found a new individual counselor.
Also, new form is required to reapply for disability.” (ECF No. 15 at 85). Plaintiff asked
Jones to complete a medical assessment of his ability to perform work-related activity,
which Jones did complete “with patient.” (Id.). Jones “encouraged Patient to consider
group therapy. He declined.” (Id.).
Jones completed a medical assessment of Plaintiff’s ability to perform work-
related activity on September 20, 2023. (ECF No. 15 at 68-71). The diagnosed mental
health impairments were reported as: “Feelings of worthlessness/excessive/inappropriate
guilt, marked diminished interest in all activities, becoming easily annoyed.” Id. The
symptoms were: “not caring for physical health. Stays in bed for 16 or 18 hours a day.
Not accomplishing responsibilities required of him.” Id. The clinical findings
demonstrating the severity of the symptoms and impairments were “PHQ-9 = 20 (Severe)
Disheveled appearance,” and “GAD-7 = 13 (Moderate) Flat affect & depressed mood.”
(Id.). With respect to specific limitations, Jones indicated Plaintiff had moderate
limitations in understanding and remembering short and simple and detailed instructions,
and getting along with co-workers, mild limitations in asking simple questions or
requesting assistance, and moderately severe limitations in accepting instructions and
responding appropriately to criticism from supervisors. (ECF No. 15 at 68-69). He opined
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Plaintiff had moderate limitations in responding appropriate to changes in the work
setting, moderately severe limitations in traveling to unfamiliar places or using public
transportation, and severe limitations regarding setting realistic goals or making plans.
(ECF No. 15 at 69). Jones also opined Plaintiff had mild limitations in carrying out
detailed instructions and sustaining an ordinary routine and making simple decisions,
moderate limitations in maintain attention and concentration and working in coordination
with or proximity to others, and severe limitations with regard to performing activities on
a schedule and maintaining regular attendance and completing a normal workday and
workweek. (ECF No. 15 at 70). Jones believed Plaintiff would be off-task 10-15% of the
workday and occasionally require additional supervision. (ECF No. 15 at 71). Jones
further averred Plaintiff would be absent from work more than three times per month.
(Id.). Jones commented: “Frequent debilitating headaches would interfere with required
attendance. Rumination would significantly impair his ability to accomplish results.
Missing work result in more depression & a great accumulation of symptoms.” (Id.).
On October 4, 2023, Plaintiff reported his medications as atorvastatin, fenofibrate
(used to treat high cholesterol and triglyceride levels), lisinopril, metformin, mirtazapine,
Prilosec, and venlafaxine. (ECF No. 14-8 at 90).
At the hearing before the ALJ on November 23, 2023, Plaintiff testified as follows
in response to the ALJ’s questioning.
Q It looks like you went to college. Did you get a degree or a certificate?
A Yes. I earned a two-year degree, Associate’s in Science.
Q Do you have a driver’s license?
A Yes. I do.
Q Do you drive?
A Yes. I do.
Q Are you currently working?
A No. I am not.
Q What was your last job?
A I worked for -- sorry. I’m drawing a blank on the name. But I was a
mechanical design for a fuel -- Robertson Fuel Systems.
Q You have work here from Aerotech Affiliated in 2016 to 2019. Was that
a different job?
A Those were contract positions.
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Q Okay. And so that was not with Robertson Fuel.
A No. That was full -- the Robertson Fuel Systems was a full-time, direct
hire.
Q Okay. What did you do for these contract positions?
A Pretty much the same, mechanical type designs. …
Q Okay. And so what did you do at Robertson Fuel, for example?
A At Robertson Fuel, I would take -- I would work alongside the main
engineering gentleman on projects that entailed fuel bladders for military
aircraft and ground craft. And I would take the information that they gave
me, and I would create drawings based on the designs of the product. I also
worked on some extracurricular activities. …
***
Q All right. Before you worked at these contract jobs, you had a job at
Colnatec.
A Yeah.
Q This is from 2014 to 2016. What did you do for them?
A For them, I did mechanical design of products for our customers.
***
Q. Okay. You worked for several different other companies. …
So the one job before [Colnatec] was Nano Volt[echs]. … That’s in 2013.
***
So before that, you worked for a place called Tech Staff of Arizona … this
is 2010 to 2012 … would this have been a temporary agency, a contract
agency, or –
***
A. … So I actually worked at Nano Voltechs twice, one under contract, and
one under direct hire. I was doing the same thing … they liked my work,
and so they kept me longer than originally estimated. And then they had no
more work, so they let me go. And then that was 10/2011 to 12/2012. And
then I was hired again on 7/2013 to 11/2013. …11
***
Q What happened in November of 2020, that caused you to allege
disability?
A I lost my job at Robertson, due to missing days, due to headaches and
depression. And I just couldn’t hold down a job, so I didn’t know what else
to do.
Q Okay. Did you try to find any other work after November of 2020?
A No. I did not.
Q Okay. They let you go then?
A Yes. They did.
11 Plaintiff also testified that he worked at Aerotech Affiliated from 2016 through 2019,
in a contract position. (ECF No. 14-3 at 40).
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Q You mentioned depression. Are there any other mental health diagnoses
that you have?
A Severe -- I’ve been diagnosed with severe depression, and extreme
anxiety.12 Of course, they call it social anxiety disorder.
Q Do you have any physical impairments?
A Other than periodically just some arthritis and a hernia, the headaches
would be the most prominent.
***
Q Do you have a PCP, a family medicine?
A My Medicare, yes, I do.
Q Who’s your primary care provider?
A It is Terros Health.
Q So they handle both your mental health and your physical health?
A They -- I was going to a counselor at Terros Health, but they the person I
was seeing, they told me that he was being asked to wrap things up with
people over a certain time, and start seeing new people. So for the past
three or four weeks now, I’ve started seeing a new counselor at Southwest
Network, which is also my insurance provider.
***
Q And are you going to the Phoenix Neurological Institute for your
headaches?
A I had gone to them to get checked out. They’re the ones that did the MRI,
and found the arthritis in my neck. Beyond that, I have not seen them
anymore.
Q How are you treating your headaches?
A Sleep and/or taking some Advil. But that has varying effects, yes.
Q How often do you get headaches?
A They’ve been less since I stopped working, but at least a small one once
a week.
(ECF No. 14-3 at 48).
Q How long have you been having depression and anxiety?
A As long as -- well, the depression, as long as I can remember. Anxiety,
probably anxiety was starting in the teens.
Q Anxiety, oh, from your teens.
A Yes.
Q Okay. How did you manage it before you stopped working?
A It was not very well controlled. But I was - I seem to have -- when I was
younger, I seemed to have a little more ability to rebound from bad
situations. But over the years, the depression’s gotten worse, and I just
12 The record on appeal indicates Plaintiff’s anxiety was generally rated as mild or
moderate.
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don’t have -- I guess you’d call it the strength that I used to have when I
was younger to rebound from it.
Q Was there something that happened in 2020, that started making it worse,
something that where you just couldn’t --
A It’s been building. It’s just been slowly building. I’m a very job oriented
person. And losing my job over and over again, because of the headaches,
and the depression, just was making it worse. I mean, I did lose my father I
forget how many years ago [2013], but -- which had a minor [effect] on my
overall mental health. But it’s just been you put so much stock into yourself
as far as your job, and then you constantly lose it.
Q So what do you do in a typical day?
A Lay in bed and watch anime, or I’ll skim through You Tube. There are
times that I, you know, will get up and do stuff around the house that my
mom needs me to do.
Q Are you talking about chores, like vacuuming, sweeping, cleaning the
bathrooms?
A Yeah. And trying to – I have a two and a half [] car garage full of my
stuff, since I’ve moved here that I have to try and sort through, or keep up
the vehicles.
Q Do you do some sort of maintenance on the vehicles?
A Oil changes, check the tire pressure. Like my mother’s car has the tire
sensors, and if it comes up and tells her that it’s low, I’ll go out and fill her
tires, and check the tires on the other vehicles.
***
Q Do you have any pets that you take care of?
A Yes. I have two Dalmatians.
Q Do you feed them, take them for walks, that sort of thing?
A I feed them, and spend time with them. I, unfortunately have not been
taking them out for walks or to the dog park like I used to.
***
Q Do you ever go outside, go for a walk, go to the park, or anything like
that?
A No. I have not.
***
Q Do you ever travel to see family or friends?
A My sister and niece live in Mesa, and we’ve gone over to see them. …
Q Do you talk to anybody on the phone?
A Periodically, I talk to a friend of mine who was here in Arizona, and has
moved back to Michigan to help his family and to finish his degree. We
also talk through the computer periodically, depending how busy he is with
school.
***
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Q Do you use your computer or cellphone to access the internet, other than
the videos?
A Yeah. I do emails and just research and stuff, that kind of hits me at the
time on my computer. Periodically I play – I do play a computer game.
Q How is your treatment going with Mr. Jones?
A Well, unfortunately, by the time that I we finally started to narrow down
my -- where we wanted to do the work, is when he had to start seeing other
people. So I’m now seeing, like I said, Janelle, every week. And we just
started, as far as where we want to kind of start. So only time will tell.
Q Well, it looks like you were seeing him for over a year, since –
A Yeah. Yes. But so what happened was we first were going to zero in on
the anxiety, and then it came to light that, you know, probably should work
on my thought process. And so we started to kind of create a map of, you
know, how we wanted to proceed. And then as we started to proceed and
get to a, you know, a point where we might be trying to, you know, change
certain things, by the time that arrived, we were at the end of the sessions.
Q Did you think it was going well, or –
A I mean, yeah. We -- I felt we were finally on the track, just not we didn’t
really get to the how to implement and fight the bad beliefs with good
beliefs.
(ECF No. 14-3 at 48-53).
V. The ALJ’s Decision
In the written decision denying benefits the ALJ determined Plaintiff had not
engaged in substantial gainful activity since November 23, 202, the alleged date of the
onset of disability, and that the date he was last insured for benefits was December 31,
2025. The ALJ found Plaintiff had the severe, medically determinable impairments of
major depressive disorder and anxiety disorder. The ALJ concluded Plaintiff had a
nonsevere impairments of cervical degenerative disc disease and obesity. The ALJ further
found:
The claimant alleges headaches, and headaches are mentioned in the record
as a history in his mental health records, but he has had no treatment for
this condition. He also alleges arthritis in his left knee and right fingers. At
the hearing, the claimant acknowledged he has had no treatment for these
conditions. As such, there is no medically determinable impairment
associated with the claimant’s report of headaches and/or arthritis.
(ECF No. 14-3 at 19).
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At the next step of the sequential evaluation the ALJ determined Plaintiff did not
have an impairment or combination of impairments that meets or medically equals the
severity of one of the listed impairments in the relevant section of the Code of Federal
Regulations. The ALJ found and concluded:
The severity of the claimant’s mental impairments, considered singly
and in combination, do not meet or medically equal the criteria of listings
12.04 and 12.06. In making this finding, the undersigned has considered
whether the “paragraph B” criteria are satisfied. To satisfy the “paragraph
B” criteria, the mental impairments must result in one extreme limitation or
two marked limitations in a broad area of functioning. An extreme
limitation is the inability to function independently, appropriately, or
effectively, and on a sustained basis. A marked limitation is a seriously
limited ability to function independently, appropriately, or effectively, and
on a sustained basis.
In understanding, remembering, or applying information, the
claimant has no limitation. The medical evidence of record indicates the
claimant’s memory is intact, normal, and age appropriate (Exhibits 2F/9,
4F/49, 64, 82, 7F/22, 14F/27). He is noted to have normal/good insight and
judgment (Exhibits 2F/9, 13, 4F/12, 73, 82, 5F/4, 5, 14F/5, 115) and
logical, goal directed thought processes (Exhibits 2F/9, 13, 4F/12, 14F/5).
The records indicate he is learning computer programming and is working
on designs on a 3D printer (Exhibit 12F/28). Accordingly, the claimant has
no limitation in understanding, remembering, or applying information.
In interacting with others, the claimant has a moderate limitation.
The claimant reports he does not interact much with other people (Exhibit
5F/2), has social phobia/social anxiety (Exhibit 7F/23, 46) and has
experienced social anxiety for as far back as he can remember (Exhibit
4F/10). The medical evidence of record indicates the claimant is
cooperative (Exhibits 2F/9, 21, 4F/12, 103, 5F/1, 14F/5) and generally has
fair/average eye contact when interacting with his healthcare providers
(Exhibits 2F/9, 21, 4F/12, 103). He has been noted to have fleeting eye
contact at times (Exhibit 5F/1). Accordingly, the claimant has a moderate
limitation in interacting with others.
With regard to concentrating, persisting, or maintaining pace, the
claimant has a moderate limitation. The claimant reports it is very difficult
for him to concentrate on things, such as reading the newspaper or
watching television (Exhibit 14F/7, 13). He has reported he is so restless
that it is hard to sit still on more than half of his days (Exhibit 14F/7, 14).
He also testified it took him over one year to finish a Dutch door for his
niece, which would have taken him only a couple of weeks if it were not for
his conditions (Hearing Testimony). The records indicate he is learning
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computer programming and is working on designs on a 3D printer (Exhibit
12F/28), which requires concentration, but the claimant testified he has
“highs and lows”, and during the low periods, he stays in bed most of the
day. Accordingly, the claimant has a moderate limitation in concentrating,
persisting, or maintaining pace.
As for adapting or managing oneself, the claimant has no limitation.
The medical evidence of record indicates the claimant dresses
appropriately, with adequate grooming and hygiene, for his healthcare
appointments and is cooperative (Exhibits 2F/9, 13, 4F/12, 14F/5). He is
noted to have normal/good insight and judgment (Exhibits 2F/9, 13, 4F/12,
73, 82, 5F/4, 5, 14F/5, 115) and logical, goal directed thought processes
(Exhibits 2F/9, 13, 4F/12, 14F/5). Accordingly, the claimant has no
limitation in adapting or managing himself.
Because the claimant’s mental impairments do not cause at least two
“marked” limitations or one “extreme” limitation, the “paragraph B”
criteria are not satisfied.
The undersigned has also considered whether the “paragraph C”
criteria are satisfied. In this case, the evidence fails to establish the presence
of the “paragraph C” criteria. There is no evidence that the claimant
requires significant psychosocial supports or a highly structured setting, or
that he has shown marginal adjustment, defined as minimal capacity to
adapt to changes in her environment or daily life.
The limitations identified in the “paragraph B” criteria are not a
residual functional capacity assessment but are used to rate the severity of
mental impairments at steps 2 and 3 of the sequential evaluation process.
The mental residual functional capacity assessment used at steps 4 and 5 of
the sequential evaluation process requires a more detailed assessment of the
areas of mental functioning. The following residual functional capacity
assessment reflects the degree of limitation the undersigned has found in
the “paragraph B” mental function analysis.
(ECF No. 14-3 at 19-20).
The ALJ concluded, “[a]fter careful consideration of the entire record … the
claimant has the residual functional capacity to perform a full range of work at all
exertional levels but with the following nonexertional limitations: the claimant can
understand and remember simple instructions, follow simple instructions, make simple
work-related decisions, perform simple tasks, have occasional contact with coworkers
and public, and adapt to simple changes in a routine work environment.” (ECF No. 14-3
at 20). The ALJ stated they had “considered all symptoms and the extent to which these
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symptoms can reasonably be accepted as consistent with the objective medical evidence
and other evidence, based on the requirements of 20 CFR 404.1529 and SSR 16-3p. The
undersigned also considered the medical opinion(s) and prior administrative medical
finding(s) in accordance with the requirements of 20 CFR 404.1520c.” (ECF No. 14-3
at 20-21).
The ALJ also found and concluded:
The claimant alleges he is unable to work due to severe depression,
social anxiety, headaches (Exhibit 2E/2) and arthritis in his neck (Exhibit
12E/2). The claimant testified he lost his last job due to absenteeism related
to headaches and depression (Hearing Testimony). He testified he is not
taking any medications or receiving any treatment for the arthritis because
it does not limit him in any way (Hearing Testimony). He testified he treats
his headaches by sleeping or taking Advil, and he has one “small” headache
one time per week. He testified he does not have any trouble walking or
breathing. He testified he has had depression and anxiety since he was a
teenager, at least. He testified the depression has gotten worse over the
years and he doesn’t have the “strength” to “rebound” that he had when he
was younger. He testified he drives, does laundry, goes shopping, and visits
his sister at times (Hearing Testimony). The records indicate he is learning
computer programming and is working on designs on a 3D printer (Exhibit
12F/28). The claimant initially reported his conditions affected his ability to
complete tasks and get along with others (Exhibit 6E/6), but he later
reported his conditions do not affect these abilities (Exhibit 11E/6).
Turning to the medical evidence, the objective findings in this case
fail to provide strong support for the claimant’s allegations of disabling
symptoms and limitations. With respect to the major depressive disorder
and anxiety disorder, the undersigned is cognizant of the substantial overlap
in symptomology between different mental impairments, as well as the
inherently subjective nature of mental diagnoses. Accordingly, the
claimant’s psychological symptoms and the effect of those symptoms on
the claimant’s functioning have been considered together, instead of
separately, regardless of the diagnostic label attached.
A review of the records reveals the claimant had been receiving
psychiatric care at Redemption Psychiatry with Jason Friday, M.D., prior to
the alleged onset date of November 23, 2020. On December 16, 2020, the
claimant was seen by Dr. Friday for evaluation and treatment of depression
and anxiety. At that time, the claimant was taking multiple prescribed
medications for his mental conditions, including carvedilol, lithium
carbonate, mirtazapine (Remeron), propranolol, and vortioxetine
(Trintellix) (Exhibit 2F/16). He reported he had tried other medications,
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transcranial magnetic stimulation, and ketamine treatments for his mental
conditions with no significant response. The claimant continued to see Dr.
Friday for evaluation of depression and anxiety through April of 2021. He
remained on medications for his conditions and was consistently noted to
have a depressed mood, but his mental status exams were otherwise normal
(Exhibit 2F/8, 13, 17).
From April of 2021 through September of 2023, the claimant was
treated by mental health professionals with Southwest Network (Exhibits
7F, 12F). During that time, he reported he was able to complete activities of
daily living (cooking, cleaning, showering, shopping), but he also reported
his depression was a barrier at times (Exhibit 7F/13). He reported he
wanted to start a side business using 3D printers for design projects
(Exhibit 7F/14). He also reported he was learning computer programming
and working on designs on a 3D printer (Exhibit 12F/20). The records from
Southwest Network note a depressed or irritable mood, at times, but
otherwise normal mental exams (Exhibits 7F/22, 26-27, 33, 37-38, 43-44,
89, 12F/21). His medications were adjusted periodically (Exhibit 7F/34, 39,
75).
From June of 2021 through September of 2023, the claimant was
also seen by multiple practitioners at Terros Health for counseling and
primary care. During his initial session with Mary Baum, LCSW, the
claimant reported he had experienced depression as far back as he could
remember and had tried multiple treatment modalities without benefit. He
was taking mirtazapine, lithium, and venlafaxine (Exhibit 4F/10). Ms.
Baum noted the claimant exhibited a depressed mood and flat affect, but his
mental status evaluation was otherwise normal (Exhibit 4F/12). Screening
tools indicated moderately severe depression (per the PHQ-9) and mild
generalized anxiety disorder (per the GAD-7) (Exhibit 4F/13). Ms. Baum
recommended group treatment, which the claimant declined. The claimant
agreed to individual counseling, and Ms. Baum indicated his prognosis was
good as long as he followed treatment recommendations (Exhibit 4F/14).
Mental status exams throughout the rest of 2021, 2022, and 2023 continued
to reflect the claimant’s depressed mood but otherwise normal mental status
(Exhibits 4F/92-93, 103, 14F/12). The records also indicate the claimant
took a trip out of town in November of 2021 and was able to manage
cancelling and rescheduling his appointment with Ms. Baum at that time
(Exhibit 4F/85). In December of 2021, the claimant reported that he was
“feeling pretty good” (Exhibit 4F/69).
During his counseling sessions at Terros Health, the claimant
reported he had been working on a project involving installation of a 3D
printer (Exhibit 4F/69). He later reported the project had become “more like
a job”, but he was managing his frustrations with the project lead (Exhibit
4F/66). He also reported he had started working on a new design upgrade
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for his computer (Exhibit 4F/46), was able to sell a motorcycle (Exhibit
4F/43), was able to help his niece with a door project (Exhibit 4F/40), was
working on the project for the printing machine with his friend (Exhibit
4F/40) and was “making progress on one of the cars” (Exhibit 4F/39). He
reported having “increased energy and drive.” (Exhibit 4F/39).
From June of 2022 through September of 2023, the claimant saw
David Jones, LCSW, at Terros Health for counseling (Exhibit 4F/21) as
Ms. Baum had left that clinic (Exhibit 4F/27). Throughout his sessions with
the claimant, Mr. Jones noted the claimant exhibited full mood/affect, was
oriented times four, showed normal motor activity and speech, with
behavior/functioning within normal limits (Exhibits 4F/16, 14F/18, 23, 30,
84). In September of 2023, the claimant informed Mr. Jones that the
claimant had found a different individual therapist (Exhibit 14F/14).
Finally, in addition to the claimant’s own medical sources, the
claimant attended a psychiatric consultative examination on September 7,
2022, with Kari Coehlo, Psy.D. (Exhibit 5F). Dr. Coehlo noted the claimant
presented with depressed mood, low levels of energy, anxiety, and
constricted affect; otherwise, the mental examination was normal. Dr.
Coehlo noted the claimant’s behavior was cooperative, speech and
language were within the normal limits, and no significant expressive or
receptive language problems were noted. Dr. Coehlo also noted the
claimant’s thought processes were organized, logical, coherent, and easy to
follow, with no signs of perceptual abnormalities including hallucinations
or delusions. The claimant denied present suicidal/homicidal ideation,
gestures, plans, or intent and was oriented to person, place, time, and
situation. The claimant’s attention and concentration were noted to be
adequate, and his fund of information was noted to be fair. The claimant
was able to name the president of the United States and the governor of the
state of Arizona, but not the capital of France. Dr. Coehlo noted the
claimant was likely functioning at least in the average range of intellect.
The claimant’s insight and judgment appeared to be intact. Dr. Coehlo
noted the claimant earned 30/30 on the Folstein mini -mental status portion
of the evaluation (Exhibit 5F/3-4).
(ECF No. 14-3 at 21-23).
The ALJ averred that Plaintiff’s depressive and anxiety disorders were accounted
for in the assessed residual functional capacity. The ALJ further found and concluded:
After careful consideration of the evidence, the undersigned finds
that the claimant’s medically determinable impairments could reasonably
be expected to cause some of 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
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evidence and other evidence in the record for the reasons explained in this
decision. While the record does reflect medical diagnoses of major
depressive disorder and anxiety disorder requiring prescription medication,
the record also reflects the claimant is able to drive, do laundry, go
shopping, and travel at times (Hearing Testimony). The records indicate he
is learning computer programming and is working on designs on a 3D
printer (Exhibit 12F/28). His mental status exams are consistently normal
except for a depressed or irritable mood at times (Exhibits 7F/22, 26-27, 33,
37-38, 43-44, 89, 12F/21). Since the alleged onset date, the claimant
reported he had started working on a new design upgrade for his computer
(Exhibit 4F/46), was able to sell a motorcycle (Exhibit 4F/43), was able to
help his niece with a door project (Exhibit 4F/40), was working on a project
for a printing machine with his friend (Exhibit 4F/40) and was “making
progress on one of the cars” (Exhibit 4F/39). He reported having “increased
energy and drive” with consistent counseling and medication (Exhibit
4F/39). Accordingly, the claimant’s allegations are inconsistent with the
objective medical and other evidence of record. The undersigned has
accounted for the claimant’s mental impairments by limiting the claimant
with nonexertional limitations.
… The undersigned has fully considered the medical opinions and
prior administrative medical findings as follows:
The undersigned has read and considered the opinions of psychiatric
consultative examiner Kari Coelho, who examined the claimant on
September 7, 2022 (Exhibit 5F). Dr. Coelho opined the claimant did not
have any limitation in understanding and remembering simple instructions,
carrying out simple instructions, the ability to make judgments on simple
work-related decisions, understanding and remembering complex
instructions, carrying out complex instructions, and the ability to make
judgements on complex work-related decisions. Additionally, Dr. Coelho
opined the claimant’s ability to interact appropriately with supervisors, co-
workers, and the public was moderately impaired, as was his ability to
respond appropriately to changes in a routine work setting (Exhibit 5F/6).
The undersigned notes these opinions are not stated in vocationally relevant
terms and do not identify any specific limitations that result from the
impairments. Dr. Coelho’s opinions are supported by her examination of
the claimant (Exhibit 5F/1). Her opinion regarding the claimant’s ability to
interact with others is consistent with the record which shows the claimant
did have fleeting eye contact at times (Exhibit 5F/1). However, her
opinions that the claimant can understand and remember complex
instructions, carry out complex instructions, and has the ability to make
judgments on complex work-related decisions does not account for the
limitations in the claimant’s concentration which he testified to at the
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hearing. Accordingly, the undersigned only finds this opinion to be partially
persuasive.
The undersigned has read and considered the prior administrative
medical findings of state agency psychological consultant Cristobal Eblen,
Ph.D., who reviewed the record on September 13, 2022 (Exhibit 1A/4-5).
Dr. Eblen found the claimant’s psychiatric symptoms may impact aspects
of persistence and pace (Exhibit 1A/6). Dr. Eblen also found the claimant
may benefit from a work setting with limited social contact (Exhibit 1A/7).
Dr. Eblen’s findings are partially supported by references to the medical
evidence of record (Exhibit 1A/4-5). However, Dr. Eblen’s findings are not
consistent with the evidence as a whole. Dr. Eblen’s findings do not
account for the limitations the claimant has in concentration about which
the claimant testified at the hearing (Hearing Testimony). The undersigned
finds these findings to be nonpersuasive.
The undersigned has also read and considered the prior administrative
medical findings of state agency psychological consultant George Stern,
Ph.D., who reviewed the records on reconsideration on June 12, 2023
(Exhibit 3A/4-5). Dr. Stern found the claimant is limited to jobs that require
no more than occasional interaction with the public (Exhibit 3A/6). Dr.
Stern’s findings are partially supported by references to the medical
evidence of record (Exhibit 3A/4-5). However, Dr. Stern’s findings are not
consistent with the evidence as a whole, including the claimant’s hearing
testimony where he stated he has “highs and lows”, and during the low
periods, he stays in bed most of the day which supports the undersigned’s
finding of moderate imitations in concentrating (Hearing Testimony). The
undersigned finds these findings to be nonpersuasive.
The undersigned has also read and considered the prior administrative
medical findings of state agency medical consultant, Nathan Strause, M.D.,
who reviewed the record on August 8, 2022 (Exhibit 1A/3). Dr. Strause
found the claimant’s headaches are nonsevere (Exhibit 1A/3). State agency
medical consultant Javier Torres, M.D., concurred with this finding on
reconsideration on June 9, 2023 (Exhibit 3A/3). This finding is supported
by references to the record (Exhibits 1A/3, 3A/3) and is consistent with the
evidence as a whole, which indicates the claimant has received only one
diagnostic test for his headaches (Exhibit 9F/11) and is not currently being
treated for headaches (Exhibits 1F-14F, generally, Hearing Testimony).
The undersigned finds this finding to be persuasive.
The undersigned has also read and considered the opinions of David
Jones, LCSW, who completed a form titled “Medical Assessment of the
Patient’s Ability to Perform Work Related Activity” on November 3, 2022
(Exhibit 6F) and on September 20, 2023 (Exhibit13F). In the November
2022 assessment, Mr. Jones opined the claimant had moderately severe
limitations in his ability to remember locations and work-like procedures
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and in understanding and remembering detailed instructions, with moderate
limitations in his ability to understand and remember simple instructions
(Exhibit 6F/2). Mr. Jones further opined the claimant had: moderately
severe limitations in his ability to interact appropriately with the general
public and in getting along with co-workers or peers without distracting
them or exhibiting behavioral extremes; severe limitations in his ability to
ask simple questions or request assistance, accept instructions and respond
appropriately to criticism from supervisors and maintain socially
appropriate behavior and to adhere to basic standards of neatness and
cleanliness (Exhibit 6F/3).
Mr. Jones further opined the claimant had: no limitations in his ability to
be aware of normal hazards and take appropriate precautions; moderately
severe limitations in his ability to respond appropriately to changes in the
work setting; and severe limitations in his ability to travel to unfamiliar
places or use public transportation and set realistic goals or make plans
independently of others (Exhibit 6F/3). Mr. Jones also opined the claimant
had: no limitations in his ability to carry out simple one or two step
instructions; mild limitations in his ability to carry our detailed instructions;
moderate limitations in his ability to sustain ordinary routine without
supervision, work in coordination with or proximity to others without being
distracted by them, and make simple work-related decisions; moderately
severe limitations in his ability to maintain attention and concentration
without interruptions from psychologically-based symptoms; and, severe
limitations in his ability to perform activities within a schedule, maintain
regular attendance, and be punctual within customary tolerance and
complete a normal workday and workweek without interruptions from
psychologically based symptoms and to perform at a consistent pace
without an unreasonable number and length of rest periods (Exhibit 6F/4).
Finally, Mr. Jones opined the claimant’s limitations lasted or expected to
last for 12 months or longer, and the claimant was likely to miss work more
than three times a month as a result of his impairments or treatment
(Exhibit 6F/5).
In the September 2023 assessment, Mr. Jones opined the claimant
had no limitation in his ability to remember locations and work-like
procedures with moderate limitations in his ability to understand and
remember short and simple instructions and understand and remember
detailed instructions (Exhibit 13F/1). Mr. Jones further opined the claimant
had: no limitations in his ability to interact appropriately with the general
public and maintain socially appropriate behavior and to adhere to basic
standards of neatness and cleanliness; mild limitations in his ability to ask
simple questions or request assistance; moderate limitations in his ability to
get along with co-workers or peers without distracting them or exhibiting
behavioral extremes; and moderately severe limitations in his ability to
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accept instructions and respond appropriately to criticism from supervisors
(Exhibit 13F/2). Mr. Jones further opined the claimant had: no limitations
in his ability to be aware of normal hazards and take appropriate
precautions; moderate limitations in his ability to respond appropriately to
changes in the work setting; moderately severe limitations in his ability to
travel to unfamiliar places or use public transportation; and severe
limitations in his ability set realistic goals or make plans independently of
others (Exhibit 13F/2). Mr. Jones also opined the claimant had: no
limitations in his ability to carry out simple one or two step instructions;
mild limitations in his ability to carry our detailed instructions, sustain
ordinary routine without supervision, and make simple work-related
decisions; moderate limitations in his ability to maintain attention and
concentration without interruptions from psychologically-based symptoms
and work in coordination with or proximity to others without being
distracted by them; and, severe limitations in his ability to perform
activities within a schedule, maintain regular attendance, and be punctual
within customary tolerance and complete a normal workday and workweek
without interruptions from psychologically based symptoms and to perform
at a consistent pace without an unreasonable number and length of rest
periods (Exhibit 13F/3). Finally, Mr. Jones opined the claimant would be
off task 10-15% during the workday, would occasionally (defined as very
little of the time up to 1/3 of the time) require additional supervision during
the workday, and would be absent from work as a result of his impairment
or treatment more than three times a month. Mr. Jones also opined the
limitations have lasted or are expected to last for 12 months or longer
(Exhibit 13F/4).
The undersigned is not persuaded by the opinions of Mr. Jones. Mr.
Jones checked boxes indicating limitations and gave no explanation for his
opinions. Additionally, the September 2023 assessment (Exhibit 13F) was
worked on and completed with the claimant’s input (Exhibit 14F/14) rather
than being completed based on Mr. Jones’ objective findings. Mr. Jones’
opinions are not supported by his own treatment notes (Exhibits 4F, 14F)
and are not consistent with the treatment records as a whole. For example,
Mr. Jones’ opinions are inconsistent with the findings from the claimant’s
mental consultative examination where the claimant’s behavior was
cooperative, his speech and language were within normal limits, his thought
processes were organized, logical, and coherent, there were not any signs of
perceptual abnormalities, the claimant’s attention and concentration were
adequate, and his insight and judgment were intact (Exhibit 5F/4). Mr.
Jones’ opinions are also inconsistent with the wide range of activities in
which the claimant is able to participate despite his mental impairments,
including working on a new design upgrade for his computer (Exhibit
4F/46), selling a motorcycle (Exhibit 4F/43), helping his niece with a door
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project (Exhibit 4F/40), working on a project for a printing machine with
his friend (Exhibit 4F/40), and “making progress on one of the cars”
(Exhibit 4F/39).
(ECF No. 14-3 at 21-23) (emphasis added).
Accordingly, the ALJ concluded “[t]he medical evidence of record does not
sustain the claimant’s allegations of disabling symptoms and limitations.” (ECF No. 14-3
at 27).
Based on the vocational expert’s testimony at the hearing, the ALJ found Plaintiff
was unable to perform any past relevant work. The ALJ further found, based on the
vocational expert’s testimony, that given Plaintiff’s age and residual functional capacity
there were jobs that he could perform, such as the jobs of janitor, hand packager, and
dishwasher and, accordingly, that Plaintiff was not “disabled.” (ECF No. 14-3 at 27-28).
VI. Analysis of the Claims for Relief
A. Symptom testimony
Plaintiff contends the ALJ committed harmful error by rejecting his testimony
regarding the severity of his symptoms without providing specific, clear, and convincing
reasons for doing so, supported by substantial evidence in the record. Plaintiff asserts the
ALJ failed to “connect anything specific in the medical record to a specific
inconsistency” in Plaintiff’s hearing testimony in concluding “’the objective findings in
this case fail to provide strong support for the claimant’s allegations of disabling
symptoms and limitations.’” (ECF No. 16 at 14).
The claimant bears the burden of proof for the first four steps of the sequential
evaluation, including whether they are able to engage in any substantial gainful activity
due to a medically determinable physical or mental impairment. See Andrews, 53 F.3d at
1040; Bergfeld v. Barnhart, 361 F. Supp. 2d 1102, 1110 (D. Ariz. 2005). “An ALJ
engages in a two-step analysis to determine whether a claimant’s testimony regarding
subjective pain or symptoms is credible. First, the ALJ must determine whether the
claimant has presented objective medical evidence of an underlying impairment which
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could reasonably be expected to produce the pain or other symptoms alleged.” Garrison,
759 F.3d at 1014. The medical evidence need not corroborate the severity of the alleged
symptoms, the medical evidence need only establish that the impairment could
reasonably be expected to cause some degree of the alleged symptoms. E.g., Lingenfelter
v. Astrue, 504 F.3d 1028, 1036 (9th Cir. 2007). Then, provided “there is no evidence of
malingering,” the ALJ can reject the claimant’s testimony about the severity of their
symptoms “only by offering specific, clear and convincing reasons for doing so.”
Garrison, 759 F.3d at 1014-1015. See also Smith v. Kijakazi, 14 F.4th at 1111-12.
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, e.g., Ahearn v. Saul, 988 F.3d 1111, 1116 (9th Cir. 2021). The Court
may set aside the ALJ’s decision regarding a claimant’s symptom testimony only when
the ALJ’s decision is not supported by “substantial evidence” or when the decision is
predicated on harmful legal error. Trevizo, 871 F.3d at 674. “Substantial evidence means
more than a mere scintilla, but less than a preponderance. It means such relevant evidence
as a reasonable mind might accept as adequate to support a conclusion.” Id. And even
when the ALJ commits legal error, their decision must be upheld when that error is
harmless, i.e., the error “is inconsequential to the ultimate nondisability determination,”
or when “the agency’s path may reasonably be discerned, even if the agency explains its
decision with less than ideal clarity.” Treichler v. Commissioner of Soc. Sec. Admin., 775
F.3d 1090, 1099 (9th Cir. 2014). See also King v. Commissioner of Soc. Sec. Admin., No.
19-cv-05669, 2020 WL 5587429, at *2 (D. Ariz. Sept. 18, 2020). It is the ALJ’s
prerogative to “determine credibility, resolve conflicts in the testimony, and resolve
ambiguities in the record.” Treichler, 775 F.3d at 1098. When the record evidence is
susceptible to more than one rational interpretation, one of which supports the ALJ’s
decision, the Court must uphold the ALJ’s decision. E.g. Ahearn, 988 F.3d at 115-16,
citing Mayes v. Massanari, 276 F.3d 453, 459 (9th Cir. 2001). See also Trevizo, 871 F.3d
at 674-75.
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During the hearing Plaintiff testified that his depression and headaches rendered
him completely unable to work. The ALJ determined that Plaintiff’s testimony regarding
the extent to which his depression and headaches rendered him unable to work was not
fully credible. There is substantial record evidence, i.e., more than a scintilla of record
evidence, supporting the ALJ’s conclusion. Under Ninth Circuit case law and Social
Security regulations, clear and convincing reasons for rejecting a claimant’s subjective
symptom testimony include conflicting medical evidence, including inconsistencies
between the claimant’s testimony and record evidence from physicians about the nature,
severity, and effect of the claimant’s symptoms; effective medical treatment; a claimant’s
noncompliance with prescribed treatment; and inconsistencies between the claimant’s
testimony and reports of daily activities. See Tommasetti, 533 F.3d at 1040; Lingenfelter,
504 F.3d at 1036; Light v. Social Sec. Admin., 119 F.3d 789, 792 (9th Cir. 1997). An ALJ
may properly discount a claimant’s subjective pain testimony “by providing a specific,
clear, and convincing rationale based on inconsistencies with the record, [the claimant’s]
self-reported daily activities, and [a] generally conservative treatment plan.” Smartt v.
Kijakazi, 53 F.4th 489, 495, 497 (9th Cir. 2022).
The ALJ found “allegations” regarding his symptoms were “inconsistent with the
objective medical and other evidence of record.” (ECF No. 14 at 23-24). The ALJ noted
that Plaintiff’s symptom testimony was not consistent with his reported activities and the
medical record. The ALJ did cite to specific examples, and any error was harmless
because the record on appeal indicates more than a scintilla of evidence supporting the
ALJ’s conclusion that Plaintiff’s reported symptoms were not as severe as alleged. See
Smartt, 53 F.4th at 500. The ALJ noted that, prior to the denial of benefits upon
reconsideration, Plaintiff had not sought treatment specifically for his headaches, a
finding supported by the record evidence. Notably, Plaintiff does not specifically dispute
the ALJ’s finding that his headaches were not a severe “medically determinable
impairment” with regard to Plaintiff’s ability to work. (ECF No. 14-3 at 19).
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The ALJ also found Plaintiff’s statements regarding the intensity, persistence and
limiting effects of his symptoms were not entirely consistent with the medical evidence
and other evidence in the record, including his reported activities of daily living, which
included driving, household chores, shopping, traveling, engaging in projects regarding
computers, and repairing a motorcycle. The ALJ noted Plaintiff was learning new skills,
such as computer programming, and developing skills involving 3D printing. The ALJ
noted Plaintiff reported progress in his mental health when he was engaging in consistent
counseling with a mental health care provider and on an appropriate medication regiment.
The ALJ noted the medical evidence, including the MRI, did not substantiate Plaintiff’s
record statements regarding the frequency and severity of his headaches. These reasons
provided a sufficient basis for the ALJ to decline to fully credit Plaintiff’s symptom
testimony. See Smartt, 53 F.4th at 498-500 (stating an ALJ may rely on “objective
medical evidence” that is “inconsistent with the claimant’s subjective testimony” in
discounting a claimant’s testimony regarding the severity of impairment). Symptom
testimony which is inconsistent with the record medical evidence is a legitimate reason to
discount a claimant’s symptom testimony. See Carmickle v. Commissioner of Soc. Sec.
Admin., 533 F.3d 1155, 1161 (9th Cir. 2008) (“Contradiction with the medical record is a
sufficient basis for rejecting the claimant’s subjective testimony.”); 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).
Moreover, any failure of the ALJ to cite additional specific reasons for discounting
Plaintiff’s symptom testimony was harmless because the ALJ’s decision regarding
Plaintiff’s symptom testimony is supported by substantial record evidence that Plaintiff’s
mental health, and his headaches, were not as disabling as Plaintiff alleged. The medical
record, which includes records from before Plaintiff alleged he became unable to work,
indicates Plaintiff’s mental health did not objectively deteriorate. Additionally, the record
indicates he received only conservative treatment (medications such as mirtazapine and
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venlafaxine) for his depression, he sought only cognitive therapy for his depression. See
Tommasetti, 533 F.3d at 1039-40 (concluding evidence that claimant “responded
favorably to conservative treatment” was inconsistent with the plaintiff’s reports of
disabling pain); Parra v. Astrue, 481 F.3d 742, 751 (9th Cir. 2007) (“[E]vidence of
‘conservative treatment’ is sufficient to discount a claimant’s testimony regarding
severity of an impairment.”); Bailey v. Colvin, 659 F. App’x 413, 415 (9th Cir. 2016)
(concluding evidence that “impairments had been alleviated by effective medical
treatment,” to the extent inconsistent with “alleged total disability[,]” provides a specific,
clear, and convincing reason for discounting subjective complaints); Dyer ex rel. Dyer v.
Colvin, 9 F. Supp. 3d 1116, 1122 (D. Ariz. 2014). The record indicates Plaintiff’s mental
condition improved when he was stable on his medications, was attending counseling,
and was engaged in projects or working towards learning new skills. Per the treatment
records from Plaintiff’s mental health professionals, Plaintiff required cognitive therapy,
with an emphasis on his thought processes, rather than additional or other medications to
address any chemical imbalance. Additionally, Plaintiff did not follow-up with
recommended mental health care, i.e., his providers’ recommendations to engage in
intensive or group therapy, or to do his “homework” with regard to his cognitive therapy.
Moreover, from from November of 2022 through June of 2023 Plaintiff cancelled or
declined mental health therapy sessions. If a claimant’s symptoms were not severe
enough to motivate them to seek treatment or follow a provider’s advice, they have not
carried their burden of showing disability. E.g., Trevizo, 871 F.3d at 679.
Plaintiff alleged his headaches were disabling and a primary cause of disability.
However, Plaintiff did not, throughout the relevant time period, regularly report
completely disabling headaches, request medication for headaches, or report the
headaches as migraines. Plaintiff did not seek medication for his headaches after
discontinuing Tramadol. No physician diagnosed migraines based on objective testing.
The physician reporting on the results of the MRI, undertaken at the request of a
neurologist Plaintiff consulted on the recommendation of his attorney, did not opine the
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MRI results indicated migraines. Moreover, in the record Plaintiff alleges he would be in
bed with a headache for “days,” but the medical record indicates he never sought or was
treated for his headaches with prescription medication, which he himself represented as
“psychosomatic.” Plaintiff asserted that Advil did not alleviate his headaches, but he did
not, throughout the relevant time period, seek any form of specialized treatment or
prescription medication to treat the headaches. See Parra, 481 F.3d at 751 (“[E]vidence
of ‘conservative treatment’ is sufficient to discount a claimant’s testimony regarding
severity of an impairment”), citing Johnson v. Shalala, 60 F.3d 1428, 1434 (9th Cir.
1995). “The ALJ is permitted to consider lack of treatment in [their] credibility
determination.” Burch v. Barnhart, 400 F.3d 676, 681 (9th Cir. 2005).
Plaintiff’s reports of completely disabling headaches was not consistent with
regard to their frequency or severity. Throughout the medical record Plaintiff regularly
denied or did not advise of headaches, and the time of the hearing he testified he had
“maybe” one “small” headache per week.
The ALJ also found Plaintiff’s claims of completely disabling depression and
headache was belied by his activities of daily living, and the record supports this finding.
The record indicates Plaintiff could travel, work on projects, go shopping, and interact
with others, such as his “partner” in the project developing in April of 2022, a neighbor, a
friend in Michigan, and his friends on Discord, although Plaintiff had limitations
regarding interacting with strangers in a social setting, which limitations was accounted
for in the residual functional capacity assessed by the ALJ. Plaintiff was able to engage in
household tasks such as cooking, cleaning, laundry, yard work, and animal care. And
although Plaintiff reported that he did not regularly bath or change his clothes, he was
able to attend to his own hygiene when he had a doctor’s appointment or he was meeting
with others.
Plaintiff contends the ALJ erred in finding Plaintiff’s testimony was inconsistent
with his activities, “including a note of a trip out of town, learning computer
programming, working on designs or projects with a 3D printer, selling a motorcycle,
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helping his niece with a door project, driving, doing laundry, and shopping.” (ECF No.
16 at 17). Plaintiff notes the “ALJ did not find — and this record does not demonstrate —
that a substantial part of a typical day was spent engaged in activities inconsistent with
disabling limitations …” (ECF No. 16 at 17). However, per his own reports, Plaintiff’s
“typical” day was generally spent on his computer, he also took care of his dogs and
performed household chores, and he was able to prepare meals, shop, drive, and attend
his physician’s appointments. In April of 2022 Plaintiff was working on a “project” with
a partner and traveled to facilitate the completion of that project. These activities are
inconsistent with completely disabling limitations. Contrary to Plaintiff’s assertion, the
ALJ is not required to show that a claimant could do activities that were tantamount to
working full time for those activities to contradict a claimant’s reports that their ailments
rendered them completely disabled. See Smartt, 53 F.4th at 499-500. Even when a
claimant’s activities do not meet the threshold for transferable work skills, an ALJ may
still rely on those activities to support a finding that the activities are evidence
contradicting a claimant’s statements about the degree to which their symptoms render
them completely disabled. Molina v. Astrue, 674 F.3d 1104, 1112-13 (9th Cir. 2012);
Rubalcava v. Commissioner of Soc. Sec. Admin., No. 24-cv-02946, 2025 WL 2814171, at
*6 (D. Ariz. Oct. 3, 2025). Nor is the ALJ required to provide a “line-by-line exegesis” of
the claimant’s testimony. Lambert v. Saul, 980 F.3d 1266, 1277 (9th Cir. 2020). See also
Cooper v. Kijakazi, No. 20-15935, 2022 WL 1553170, at *1 (9th Cir. May 17, 2022) (A
“granular point-by-point refutation of Plaintiff’s testimony is not required.”). Although
Plaintiff’s reported daily activities “may also admit of an interpretation more favorable”
to Plaintiff, the ALJ’s interpretation was rational and the Court must uphold the ALJ’s
decision “where the evidence is susceptible to more than one rational interpretation.”
Burch, 400 F.3d at 680-81. The ALJ sufficiently demonstrated their review of the
complete record and a reasonable interpretation of the record, indicating they did not
arbitrarily discredit the claimant’s testimony. Sandburg v. Bisignano, 2025 WL 1473795,
at *1 (9th Cir. May 22, 2025).
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The ALJ’s ultimate findings with regard to Plaintiff’s symptom testimony are
supported by substantial evidence and are a reasonable interpretation of the total record
evidence. E.g. Ahearn, 988 F.3d at 1115; Trevizo, 871 F.3d at 674-75; Thomas v.
Barnhart, 278 F.3d 947, 954 (9th Cir. 2002). See also Crawford v. Berryhill, 745 F.
App’x 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”); Vazquez v. Kijakazi, No. 22-35642,
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.”).
“Ultimately, the ‘clear and convincing’ standard requires an ALJ to show his
work, which the ALJ did here.” Smartt, 53 F.4th at 499. Moreover, “[t]he ALJ is
responsible for determining credibility, resolving conflicts in medical testimony, and for
resolving ambiguities” in the record. Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir.
1995) (citations omitted). Where “the evidence can support either outcome, the court may
not substitute its judgment for that of the ALJ.” Tackett v. Apfel, 180 F.3d 1094, 1098
(9th Cir. 1999). Substantial evidence “means—and means only—such relevant evidence
as a reasonable mind might accept as adequate to support a conclusion.” Biestek, 587
U.S. at 103 (2019).
Because the ALJ identified reasons sufficiently specific to allow the Court to
conclude the ALJ did not arbitrarily discredit Plaintiff’s testimony, and any legal error
was harmless because the record shows more than a scintilla of evidence supporting the
ALJ’s ultimate conclusion, the ALJ’s discrediting of Plaintiff’s testimony regarding the
completely disabling nature of his ailments should be affirmed. Blanchard v. Bisignano,
No. 24-cv-4359, 2025 WL 2730842, at *1 (9th Cir. Sept. 25, 2025).
B. Medical Opinion Evidence
Plaintiff contends the ALJ committed materially harmful error by rejecting the
assessments of Plaintiff’s mental health counselor at Terros, i.e., Jones, without providing
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a sufficient explanation supported by substantial evidence. Plaintiff argues the ALJ failed
“to explain the consideration of the supportability and consistency factors with citation to
substantial evidence under the regulations for evaluation of medical source opinions.”
(ECF No. 16 at 19).
The applicable regulations provide:
(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 finding(s)
will be.
(2) Consistency. The more consistent a medical opinion(s) or prior
administrative medical finding(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.
(3) Relationship with the claimant. This factor combines consideration of
the issues in paragraphs (c)(3)(i) through (v) of this section.
(i) Length of the treatment relationship. …
(ii) Frequency of examinations. The frequency of your visits with the
medical source may help demonstrate whether the medical source has
a longitudinal understanding of your impairment(s).
(iii) Purpose of the treatment relationship. The purpose for treatment
you received from the medical source may help demonstrate the level
of knowledge the medical source has of your impairment(s).
(iv) Extent of the treatment relationship. The kinds and extent of
examinations and testing the medical source has performed or ordered
from specialists or independent laboratories may help demonstrate the
level of knowledge the medical source has of your impairment(s).
(v) Examining relationship. A medical source may have a better
understanding of your impairment(s) if he or she examines you than if
the medical source only reviews evidence in your folder.
(4) Specialization. The medical opinion or prior administrative medical
finding of a medical source who has received advanced education and
training to become a specialist may be more persuasive about medical
issues related to his or her area of specialty than the medical opinion or
prior administrative medical finding of a medical source who is not a
specialist in the relevant area of specialty.
20 C.F.R. § 404.152c(c)(1)-(c)(4). The Ninth Circuit Court of Appeals has advised the
lower courts that the “most important factors” the Commissioner must consider when
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evaluating “the persuasiveness of medical opinions ... are supportability ... and
consistency.” Woods, 32 F.4th at 791.
The supportability analysis considers whether a medical source supports their
opinion with relevant evidence, while the consistency analysis considers the degree to
which a medical opinion is consistent with evidence from other medical and nonmedical
sources. Kitchen v. Kijakazi, 82 F.4th 732, 740 (9th Cir. 2023). The supportability factor
goes directly to whether, or to what extent, the source explained their opinion or
conclusions by providing or citing “objective” supporting evidence. Woods, 32 F.4th at
791-92. See also Lewis v. Commissioner of Soc. Sec. Admin., 625 F. Supp. 3d 942, 950
(D. Ariz. 2022). With regard to the “consistency” factor, the regulations provide that
“[t]he more consistent a medical opinion[] ... is with the evidence from other medical
sources and nonmedical sources in the claim, the more persuasive the medical opinion[]
... will be.” 20 C.F.R. § 404.1520c(c)(2). See also Lewis, 625 F. Supp. 3d at 950, cited in
Quintero v. Commissioner of Soc. Sec. Admin., No. 22-cv-00853, 2023 WL 3476614,
at *4 (D. Ariz. May 16, 2023).
“An ALJ need not accept the opinion of any physician, including a treating
physician, if that opinion is brief, conclusory, and inadequately supported by clinical
findings.” Stiffler v. O’Malley, 102 F.4th 1102, 1107 (9th Cir. 2024) (internal quotations
omitted). However, an ALJ’s decision to discredit any medical opinion must be supported
by substantial evidence. Woods, 32 F.4th at 792. See also Preda v. Commissioner of Soc.
Sec. Admin., 2022 WL 2045391, at *2-3 (D. Ariz. June 7, 2022); Tillman v.
Commissioner of Soc. Sec. Admin., No. CV-21-00026, 2022 WL 58685, at *3 (D. Ariz.
Jan. 6, 2022). Accordingly, an ALJ must explain the considerations of consistency and
supportability in sufficient detail to allow a reviewing court to determine whether the
ALJ’s reasoning is free of legal error and supported by substantial evidence. See Ford,
950 F.3d at 1154; Shelley D. v. Kijakazi, No. 20-cv-0014, 2021 WL 4443322, *7 (D.
Idaho 2021) (holding the ALJ’s conclusions must “continue to satisfy metrics of both
articulation and validity to survive review.”).
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The Commissioner judges the “supportability” of a medical opinion by the
relevant “objective medical evidence and supporting explanations presented by a medical
source[.]” 20 C.F.R. § 404.1520c(c)(1). “Objective medical evidence means signs,
laboratory findings, or both.” Id. § 404.1502(f). “Psychiatric signs are medically
demonstrable phenomena that indicate specific psychological abnormalities, e.g.,
abnormalities of behavior, mood, thought, memory, orientation, development, or
perception, and must also be shown by observable facts that can be medically described
and evaluated.” Id. § 404.1502(g). The concept of “supportability” in the context of
mental health thus encapsulates the physician’s notes as well as their explanation
connecting their notes with their conclusions. See Moreno v. Commissioner of Soc. Sec.
Admin., No. 22-cv-00319, 2023 WL 4926258, at *3 (D. Ariz. Aug. 2, 2023); Lisa R. v.
Commissioner of Soc. Sec., No. 22-cv-5296, 2023 WL 1277694, at *3 (W.D. Wash. Jan.
31, 2023); Villalon v. Kijakazi, No. 20-cv-01830, 2022 WL 4388264, at *7 (E.D. Cal.
Sept. 22, 2022) (“The lack of support by [the provider’s] own treatment notes and
objective findings was a proper consideration in evaluating the supportability of her
opinion.”).
The ALJ found counselor Jones’s assessments unpersuasive, inter alia because
they were completed on check-box forms with “no explanation for his opinions,” and
were completed with Plaintiff’s input. The ALJ further found Jones’ assessments were
unsupported by, and inconsistent with, the medical record and Plaintiff’s reported
activities of daily living. The ALJ reasonably found Jones’ opinions unpersuasive. With
respect to the supportability factor, the ALJ noted Jones’ opinions were not supported
because he checked boxes but gave no explanation for his opinions. The Ninth Circuit
has “accepted the discounting of a medical opinion set forth in a checkbox form with
little to no explanation.” Kitchen, 82 F.4th at 740-41 (emphasis added). See also Ford,
950 F.3d at 1155; Crane v. Shalala, 76 F.3d 251, 253 (9th Cir. 1996) (holding the ALJ
permissibly rejected three psychological evaluations “because they were check-off
reports that did not contain any explanation of the bases of their conclusions”). The
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extensive limitations assessed by Jones on the forms are not supported by his treatment
notes, wherein Jones’ primarily addresses Plaintiff’s self-deprecating and negative
thoughts, rather than addressing any alarming or serious behavioral changes, or any
outward manifestations of a serious mental illness. Compare Burrell v. Colvin, 775 F.3d
1133, 1140 (9th Cir. 2014). Jones’ assessments were unaccompanied by any explanation
or discussion of Plaintiff’s treatment records and, accordingly, the ALJ did not err in
discounting them on this basis. See Molina v. Astrue, 674 F.3d 1104, 1111 (9th Cir. 2012)
(finding ALJ may permissibly reject check-off reports that do not contain any explanation
of the bases of their conclusions).
Although a medical opinion generally cannot be rejected solely because it is in
check-box form, it can be rejected if it is conclusory, brief, and unsupported by the record
as a whole or by objective medical findings. Mansfield v. Commissioner of Soc. Sec.
Admin., No. 24-cv-00182, 2025 WL 824288, at *5 (D. Ariz. Feb. 24, 2025), report and
recommendation adopted, 2025 WL 821842 (D. Ariz. Mar. 14, 2025). Moreover, Jones’
opinions were not supported by objective evidence, but instead were based on Plaintiff’s
own reporting of his symptoms. If a treating provider’s opinions are based “to a large
extent” on applicant’s self-reports and not on clinical evidence, and the ALJ found the
claimant’s symptom testimony not credible, the ALJ may discount the treating provider’s
opinion. See Ghanim v. Colvin, 763 F.3d 1154, 1162 (9th Cir. 2014). Contrary to
Plaintiff’s assertion, under the facts of this case the ALJ’s determination that Jones’
assessment was largely based on self-reporting is an appropriate reason to discount Jones’
opinion. See Delgadillo v. Commissioner of Soc. Sec. Admin., 641 F. Supp. 3d 663, 670
(D. Ariz. 2022).13
13 In support of his argument Plaintiff cites distinguishable cases. In Nalley v.
Commissioner of Social Security Administration the court determined the ALJ improperly
rejected a medical opinion based on the claimant’s subjective complaints because, unlike this
matter, the opinion was not based more heavily on the patient’s self-reports than on the
provider’s clinical observations. No. 23-cv-01737, 2024 WL 4444382, at *4 (D. Ariz. Oct. 8,
2024). In Valdez v. Commissioner of Social Security Administration, the court found an ALJ’s
observation that a medical opinion was completed on “check-off” forms, standing alone, was not
an adequate basis to discount an assessment based on the supportability factor, see No. 22-cv-
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Furthermore, inconsistencies between a treating provider’s opinion and the
claimant’s report of their daily activities and their limitations also constitute an adequate
reason to discredit the opinion of provider. See Delgadillo, 641 F. Supp. 3d at 671
(concluding a claimant’s report of daily activities which was inconsistent with the
provider’s assessment constituted substantial evidence to reject the treating provider’s
opinion). In his assessments Jones opined Plaintiff’s headaches were not fully treatable,
but there is no record evidence from the time in question that Plaintiff ever sought
medical treatment, such as prescription medications, for the headaches after he
discontinued Tramadol, and Plaintiff sought a diagnosis of the headaches as migraines,
i.e., a referral to a neurologist, only on the suggestion of his counsel after his application
for disability benefits was denied on reconsideration.
Additionally, Jones’ first assessment of Plaintiff’s abilities was completed when
Jones had been seeing Plaintiff for only four months. The length of the treatment
relationship and the medical source’s specialization are factors which may be considered.
Compare Garrison, 759 F.3d at 1013 (“[T]he ALJ failed to recognize that the opinions
expressed in check-box form ... were based on significant experience with Garrison and
supported by numerous records, and were therefore entitled to weight that an otherwise
unsupported and unexplained check-box form would not merit.”).
Plaintiff argues Jones’ assessments “provided ample explanation” by listing his
symptoms and providing additional comments, and that even without explanations the
ALJ was required to look at the underlying treatment notes. (ECF No. 16 at 20-21).
However, the ALJ’s opinion indicates they thoroughly reviewed the medical record,
01031, 2023 WL 6173213, at *4-5 (D. Ariz. Sept. 21, 2023), and in Moreno v. Commissioner of
Social Security Administration, the court found harmful legal error where the ALJ rejected a
medical opinion based on the format of the assessment when the underlying treatment notes
supported and provided explanation for the assessed limitations, No. 22-cv-00319, 2023 WL
4926258, at *3 (D. Ariz. Aug. 2, 2023). Plaintiff also cites Neilsen v. Colvin, 2024 WL 5200174,
at *1 (9th Cir. Dec. 23, 2024), a case in which the Ninth Circuit concluded the fact that an
opinion was provided on a “check-box form” was not a sufficient reason to reject an assessment;
however in Neilsen the doctor’s “form” assessment “‘did not stand alone: [it] reflected and w[as]
entirely consistent with … pages of treatment notes.”
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including Jones’ treatment notes, Plaintiff’s reports of his daily activities and his abilities
and limitations, and the opinions of other medical sources. The ALJ reasonably
concluded Jones’ listing of symptoms and his short and vague comments e.g.,
“significantly impairs his ability to function,” “rumination would significantly impair his
ability to accomplish results” were insufficient support for the assessed limitations. The
form’s comments do not adequately explain the basis for Jones’ opinion that Plaintiff was
moderately severely limited in his ability to interact appropriately with the general public,
and severely limited in his ability to travel to unfamiliar places or use public
transportation. All of these comments were inconsistent with Plaintiff’s own statements
in his activities of daily living reports that he did not have difficulty with authority
figures or difficulty getting along with others, and the record evidence that when working
on a “project” with a “partner” Plaintiff was able to travel.
“The ALJ need not accept the opinion of any physician, including a treating
physician, if that opinion is brief, conclusory, and inadequately supported by clinical
findings.” Stiffler v. O'Malley, 102 F.4th 1102, 1107 (9th Cir. 2024). And it is axiomatic
that an ALJ may reject a treating provider’s opinion if it is based “to a large extent” on a
claimant’s self-reports of their symptoms, which have been properly discounted as not
entirely credible. Morgan v. Commissioner of Soc. Sec. Admin., 169 F.3d 595, 602 (9th
Cir. 1999). See also Tommasetti v. Astrue, 533 F.3d 1035, 1041 (9th Cir. 2008)
Sandgathe v. Chater, 108 F.3d 978, 980 (9th Cir. 1997).
With regard to consistency, the ALJ concluded Jones’ determination of Plaintiff’s
functional limitations was inconsistent with the overall record, including the opinion of
Dr. Coehlo (who was a licensed psychiatrist), Plaintiff’s statements in his activities of
daily living, and his other mental health treatment records. This conclusion is supported
by more than a scintilla of the record evidence, and is a sufficient basis for the ALJ’s
rejection of Jones’ opinions. See Woods, 32 F.4th at 794 (affirming the ALJ’s rejection of
a medical opinion based on the inconsistency factor alone); Sandgathe, 108 F.3d at 980
(concluding substantial evidence supported the ALJ’s finding when the opinion of the
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claimant’s treating psychiatrist lacked objective medical findings, was based on self-
reporting, and conflicted with another psychiatrist’s opinion); White v. Barnhart, 88 F.
App’x 263, 263-64 (9th Cir. 2004).
Jones’ statements that Plaintiff’s headaches were untreatable and completely
debilitating are not consistent with the bulk of the record medical evidence. There are
substantial time periods when Plaintiff did not report headaches to his medical health
professionals and did not trial or request any prescription medication for the the allegedly
completely debilitating headaches. The record also indicates that when Plaintiff did
consult a neurologist, upon reviewing the MRI the neurologist concluded that no further
treatment was warranted. The only basis for Jones’ opinion that the headaches were
frequent and completely debilitating was Plaintiff’s statements to Jones, which appear to
be exaggerated, and therefore, the ALJ did not err in finding Jones’ evaluation of
Plaintiff’s limitations inconsistent with the record as a whole. See Guillen v.
Commissioner of Soc. Sec. Admin., 232 F. App’x 699, 702 (9th Cir. 2007). Nor were
Jones’ opinions consistent with the opinions of Dr. Coehlo, an examining psychiatrist,
and the reviewing state agency physicians.
The records cited by the ALJ provide more than a scintilla of evidence to support
the ALJ’s conclusion regarding Jones’ evaluations of Plaintiff’s limitations, satisfying the
requisite standard. The ALJ’s findings are fully supported by substantial evidence and are
a reasonable interpretation of that evidence, and therefore the findings must be affirmed.
See Burch, 400 F.3d at 679.
VII. Conclusion
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.
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.
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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).
Dated this 2nd day of February, 2026.
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