Bachmann v. Commissioner of Social Security Administration

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WO
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ARIZONA
Raymond Bachmann,
Plaintiff,
v.
Commissioner of Social Security,
Defendant.
No. CV-25-00087-TUC-RCC (EJM)
REPORT AND RECOMMENDATION
Currently pending before the Court is Plaintiff Raymond Bachmann’s Opening
Brief (Doc. 16). Defendant filed his Answering Brief (“Response”) (Doc. 20), and Plaintiff
replied (“Reply”) (Doc. 21). Plaintiff brings this cause of action for review of the final
decision of the Commissioner for Social Security pursuant to 42 U.S.C. §§ 405(g) and
1383(c)(3). Compl. (Doc. 1).
Pursuant to Rules 72.1 and 72.2 of the Local Rules of Civil Procedure,1 this matter
was referred to Magistrate Judge Markovich for Report and Recommendation. Based upon
the pleadings of the parties and the administrative record submitted to the Court, the
Magistrate Judge recommends that the District Judge reverse and remand the
Commissioner’s decision.
. . .
. . .
. . .
1 Rules of Practice of the United States District Court for the District of Arizona.
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I. BACKGROUND
A. Procedural History
On October 4, 2021, Plaintiff protectively filed a Title II application for Social
Security Disability Insurance Benefits (“DIB”), as well as a Title XVI application for
Supplemental Security Income (“SSI”), alleging disability as of February 15, 2021, due to
Type 2 Diabetes; chronic bilateral knee pain; hypertension; anxiety; left-sided weakness
secondary to possible stroke; left-sided neuropathy and pain; and solar urticaria. See
Administrative Record (AR) at 18, 57–59, 68–70, 79–80, 91, 102, 219, 265. The Social
Security Administration (SSA) denied these applications on August 9, 2022. Id. at 16, 57–
78, 108–27. On May 19, 2023, SSA denied Plaintiff’s application upon reconsideration.
Id. at 16, 79–102, 129–44. On May 25, 2023, Plaintiff filed his request for hearing. Id. at
16, 145–46. On January 25, 2024, a telephonic hearing was held before Administrative
Law Judge (“ALJ”) Laura S. Havens. Id. at 16, 31–56, 374–95. On March 19, 2024, the
ALJ issued an unfavorable decision. AR at 13–25. On March 19, 2024, Plaintiff requested
review of the ALJ’s decision by the Appeals Council, and on February 7, 2025, review was
denied. Id. at 1–12, 222–23. On February 20, 2025, Plaintiff filed this cause of action.
Compl. (Doc. 1).
B. Factual History
Plaintiff was forty-seven (47) years old at the time of the alleged onset of his
disability and fifty (50) years old at the time of the administrative hearing. AR at 16, 24–
25, 35, 57–59, 69–70, 79–80, 91, 219, 224, 227, 273, 318, 336. Plaintiff has a high school
education, having graduated and received a diploma. Id. at 25, 35, 67, 68, 79, 102, 266.
Prior to his alleged disability, Plaintiff worked as a security officer. Id. at 37, 225, 254,
267.
. . .
. . .
. . .
. . .
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1. Plaintiff’s Medical Treatment Records2
On January 12, 2021, Plaintiff presented to the Emergency Department (ED) at
Banner University Medical Center (Banner UMC). AR at 452–59, 694–701. Plaintiff
complained of “swelling of his neck” having noticed red bumps the previous week. Id. at
452, 694. The bumps resolved, but the felling of fullness remained. Id. Plaintiff’s blood
pressure and diabetes numbers were extremely elevated. Id. Plaintiff reported that he had
gone to urgent care regarding his neck, but after checking his blood pressure and blood
sugar, the urgent care staff directed him to emergency medicine. Id. Plaintiff further
reported that he has lacked insurance for several years and is unable to afford medications
for either condition. AR at 452, 454, 694, 696. Plaintiff’s physical examination and an
ultrasound of his neck were generally unremarkable. Id. at 453–54, 695–96. Plaintiff
continued to complain of severe neck pain and was given a dose of Toradol, after which he
was fine. Id. at 454, 696.
On March 1, 2021, Plaintiff saw Cheryl Webb, F.N.P., at Health on University for
a check-up regarding his high blood pressure. Id. at 531–34. FNP Webb assessed Type 2
diabetes, essential hypertension, obesity, and anxiety and depression. Id. at 531. FNP
Webb’s review of Plaintiff’s systems was generally unremarkable, but positive for anxiety,
depression, and joint pain. AR at 533. Plaintiff’s physical examination was similarly
unremarkable, but noted Plaintiff appeared anxious and had Velcro knee braces. Id. at
533–34. On the same date, Plaintiff had chest radiographs for his essential hypertension.
Id. at 499. Michael Baker, M.D. read the films, which were unremarkable. Id. The same
evening, Plaintiff presented to Banner UMC ED due to increasing episodes of chest pain
2 Plaintiff presents two arguments in his Opening Brief—(1) his past work as an “insurance
customer service representative” cannot qualify as “past relevant work” at Step 4 because it is not
recent enough; and (2) the ALJ improperly rejected examining neurologist Robert B. Barlow,
M.D.’s opinion. See Opening Br. (Doc. 16). The rejection of Dr. Barlow’s opinion relies, in part,
on its consistency with other medical records. As such, the Court will provide a summary of
Plaintiff’s medical records and opinions, but has not included a detailed summary of the
administrative forms and testimony given by Plaintiff. Additionally, although the Court has
reviewed Plaintiff’s entire medical record, the summary focuses on those relevant to the conditions
in his disability claim, from his alleged onset date to the present.
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since December. Id. at 428–447, 671–90. Plaintiff described his pain as occurring in the
center of his chest, radiating towards the back of his shoulders, and reported nausea and
vomiting. AR at 428, 671. Plaintiff noted that these episodes have become more frequent
as conversations with his spouse have been causing him grief and anxiety. Id. at 432, 675.
On the same day, Plaintiff underwent an echocardiogram study. Id. at 420–21, 667–68.
The echocardiogram was generally unremarkable, but records reflect “mitral valve inflow
pattern demonstrates grade I diastolic dysfunction (impaired relaxation)”; the presence of
trace mitral regurgitation; mild pulmonic regurgitation; and trace tricuspid regurgitation.
Id. at 421, 667. Plaintiff also underwent an electrocardiogram (EKG) which showed
Plaintiff was afebrile but had some tachycardia, which resolved while he was in the ED.
Id. at 422–27, 429, 450–51, 669–70. ED doctors found Plaintiff’s symptoms most
consistent with Acute Coronary Syndrome (ACS). AR at 429. Plaintiff had chest
radiographs taken. Id. at 434, 446, 677, 689–90. His chest films were unremarkable. Id.
Doctors ultimately reported Plaintiff’s chest pain was more likely a result of acute stress
and anxiety attack. Id. at 435, 678.
On March 19, 2021, Plaintiff saw Katherine E. Perona, F.N.P., at El Rio Health
Center to establish care. Id. at 523–30. FNP Perona assessed Type 2 diabetes, generalized
anxiety disorder with panic attacks, essential hypertension, bilateral primary osteoarthritis
of knee, Class 1 obesity, and ordered vaccinations and blood work. AR at 523–25.
Plaintiff’s diabetes and hypertension were not well-controlled. Id. at 526. Plaintiff
reported difficulty functioning due to anxiety, and that conflict or stress, lack of sleep, and
social interactions are aggravating factors. Id. at 526–27. Plaintiff further reported
constant knee pain, described as piercing, sharp, and throbbing. Id. at 527. Plaintiff was
previously informed that he would need knee replacement surgery. Id. FNP Perona’s
review of Plaintiff’s systems was positive for pain; nocturnal pain; restlessness; difficulty
falling and staying asleep; anxiety with difficulty concentrating, excessive worry, little
interest or pleasure in doing things, and racing thoughts; and decreased mobility, with joint
instability, joint locking, joint tenderness, limping, and weakness. Id. at 528–29.
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Plaintiff’s physical examination was unremarkable. AR at 529–30.
On April 14, 2021, Plaintiff returned to FNP Perona at El Rio Health Clinic for a
follow-up regarding his anxiety. Id. at 516–22. FNP Perona assessed Type 2 diabetes,
generalized anxiety disorder with panic attacks, essential hypertension, chest pressure, and
Class 1 obesity. Id. at 516–17. Plaintiff reported difficulty functioning due to
anxious/fearful thoughts, depressed mood, difficulty concentrating, difficulty falling and
staying asleep, diminished interest or pleasure, easily startled, excessive worry, fatigue,
feelings of guilt, as well as racing thoughts and restlessness. Id. at 518. Plaintiff further
reported chest discomfort with sudden onset, occurring intermittently. Id. at 519. FNP
Perona’s review of Plaintiff’s systems noted fatigue, pain, restlessness, chest
pressure/discomfort, nausea, diaphoresis, and anxiety with symptoms as described by
Plaintiff. AR at 521. Physical examination of Plaintiff was unremarkable. Id. at 522.
On May 27, 2021, Plaintiff had a telehealth appointment with Tammy Timmons,
M.D., at El Rio Health Center. Id. at 509–15. Dr. Timmons’s assessment included
essential hypertension, Type 2 diabetes, anxiety, and mixed hyperlipidemia. Id. at 509.
Plaintiff reported that he is divorced and endorsed anxiety around his ex-wife and the child
custody arrangement. Id. at 511–12. Treatment records reflect mild depression and
fatigue, with a referral to behavioral health. AR at 509, 511.
On June 13, 2021, Plaintiff went to the ED at St. Joseph’s Hospital with chest pain
that had begun the previous day. Id. at 403–12. Plaintiff reported intermittent tightness in
his upper chest with radiation to his back. Id. at 403. Plaintiff further reported nausea,
vomiting, and diaphoresis. Id. Records reflect his EKG did not show any acute signs of
ischemia. Id. at 407. Pain medication and intravenous fluids relieved his pain. AR at 407.
A chest x-ray was unremarkable. Id. at 412. After laboratory analysis of Plaintiff’s blood
work and physical examination, Plaintiff was diagnosed with acute costochondritis. Id. at
407.
On August 2, 2021, Plaintiff saw Nikki G. Nakovic, N.P. at Health on Broadway
for an examination. Id. at 502–08. Plaintiff reported left-sided numbness, which began
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ten (10) days prior. Id. at 504. Treatment records reflect that he went to the Emergency
Department on July 29, 2021, for this but left prior to being seen. Id. NP Nakovic also
assessed hyperlipidemia, hypertension, and diabetes. AR at 502, 504–05. NP Nakovic’s
review of Plaintiff’s systems was unremarkable, as was his physical examination. Id. at
506–07. On August 18, 2021, Plaintiff received a diabetic eye examination, which was
unremarkable. Id. at 463–67, 536–37. On September 23, 2021, Plaintiff was seen by Adam
Reynolds, M.D. regarding “sudden onset left-sided numbness” that began in August. Id.
at 468–70. Plaintiff reported intermittent involvement of his face, but constant left arm
and leg involvement, with mild weakness in addition to the numbness. Id. at 468. On
examination, Plaintiff exhibited motor strength of 4/5 throughout the left half of his body.
AR at 469. Records reflect his physical “[e]xam notable for mild to moderate left
hemiparesis.” Id. Plaintiff also had an antalgic gait. Id. On October 6, 2021, Plaintiff
received vaccinations at El Rio Health Center. Id. at 500–01.
On March 15, 2022, Plaintiff had Magnetic Resonance Imaging (MRI) scans with
and without contrast. Id. at 472–73. Ethan Neufeld, M.D. assessed “[n]o active intracranial
process[,] [n]o acute/recent infarction or discrete prior infarction[,] [and] [n]o pathological
intracranial enhancement”[;] [however,] [he noted] [s]upratentorial white matter lesions in
a pattern compatible with chronic microvascular alterations, greater than expected for age.”
AR at 472.
On April 12, 2022, Plaintiff had a well-examination with NP Perona at El Rio Health
Center, as well as laboratory analyses. Id. at 470–98. Plaintiff reported family issues had
resulted in inconsistency with medication compliance. Id. at 480. NP Perona reviewed
Plaintiff’s systems noting fatigue, cough and shortness of breath—Plaintiff reported a dry
cough with Lisinopril, numbness—left-side, as well as nervousness and anxiety. Id.
Plaintiff’s blood pressure was high, but his physical examination was otherwise
unremarkable. Id. at 481. NP Perona noted Plaintiff’s numbness to be chronic and
unchanged, directing follow-up with Dr. Reynolds. AR at 483.
On June 1, 2022, Plaintiff saw Hannah Magness, Pharm.D., at El Rio Health Center
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for diabetes support. Id. at 603–11. Plaintiff reported blood sugar levels without
hypoglycemic events. Id. at 603. Plaintiff provided updated information regarding his
food intake. Id. at 603–04. Plaintiff stated that he walks while running errands, estimating
approximately thirty (30) minutes, two (2) to three (3) times per week. Id. at 604. He
confirmed bilateral knee pain, and the continued use of knee braces. AR at 604. Dr.
Magness’s review of Plaintiff’s systems was positive for fatigue (attributed to
hyperglycemia), chest tightness, polydipsia and polyuria, arthralgias, and frequent
urination. Id. Plaintiff’s blood pressure was high. Id. Dr. Magness noted high A1C levels,
attributable to inconsistent medication compliance, stress, and diet regression—all due to
job loss, difficulty obtaining insurance and medications, and food insecurity. Id. at 605.
On September 20, 2022, Plaintiff saw NP Perona for a diabetes checkup. Id. at 596–
600. Treatment records reflect that Plaintiff was compliant with his diabetes medications
and reported improvement in his sugar levels. AR at 596. Plaintiff further reported
dizziness when bending over, as well as a burning sensation and random pain throughout
his body which resolve on their own. Id. Plaintiff also reported intense, radiating pain in
his left wrist which was helped by a wrist brace. Id. at 596–97. Plaintiff confirmed that
his left-sided numbness remained unchanged. Id. at 597. Plaintiff described increased
daytime fatigue, requiring multiple naps during the day, as well as continued anxiety flare-
ups. Id. Plaintiff’s blood pressure remained high, although his chest pain had improved.
AR at 597. NP Perona’s review of Plaintiff’s systems noted congestion, myalgias,
dizziness, and nervousness/anxiety. Id. Plaintiff’s physical examination was generally
unremarkable; however, his blood pressure was high. Id. at 598. NP entered orders
addressing Plaintiff’s concerns. Id. at 598–99.
On December 22, 2022, Plaintiff had a telehealth appointment with NP Perona
regarding bilateral knee and leg pain, as well as pain in right hand. Id. at 584–86. Plaintiff
reported the pain had been ongoing for a month and denied a family history of autoimmune
disease. AR at 584. NP Perona’s review of Plaintiff’s systems was generally
unremarkable, but was positive for arthralgias, myalgias, and gait problems. Id. at 585.
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NP Perona ordered blood work to screen for autoimmune diseases. Id.
On April 19, 2023, Plaintiff saw Courtney Rhoades, NP at El Rio Health Center to
establish care. Id. at 636–48. Plaintiff reported productive cough for the last four (4)
months. Id. at 636. Plaintiff further reported lower back and bilateral knee pain, as well
as difficulty focusing. AR at 636. Plaintiff conveyed that he was checking his blood sugar
approximately twice per week, and it is improved, although still high. Id. at 637. NP
Rhoades review of Plaintiff’s systems noted arthralgias, back pain, and gait problems. Id.
at 637, 644–45. On physical examination, Plaintiff’s blood pressure was high, and he
exhibited tenderness in the lumbar spine, as well as both knees. Id. at 637–38, 645. NP
Rhoades noted Plaintiff was anxious and agitated. AR at 638, 646. On the same date,
Plaintiff had radiographs taken of his lumbar spine and both knees. Id. at 634–36. His
lumbar spine showed “mild degenerative disc and degenerative facet changes . . . at the
L5-S1 level.” Id. at 634. Radiographs of Plaintiff’s knees were normal bilaterally. Id. at
635–36. On April 23, 2023, Plaintiff sought treatment at the Banner UMC ED due to chest
pain and shortness of breath. Id. at 655–63. Plaintiff reported “having substernal sharp
chest pain that radiated to the bilateral ribs[,] . . . associated with shortness of breath.” AR
at 657. An initial EKG “demonstrate[d] sinus tachycardia”; however, this resolved upon
subsequent testing. Id. at 658. Ultimately, a pulmonary embolism was ruled out. Id.
Radiographs were taken, showing “[n]o acute cardiopulmonary process.” Id. at 663.
Treatment records reflect anxiety was considered a more likely cause than pleurisy, or
possibly gastroesophageal reflux disease (GERD). Id. at 660.
2. Examining Physicians
a. Noelle Rohen, Ph.D.
On July 15, 2022, Noelle Rohen, Ph.D. saw Plaintiff for a psychiatric consultation
upon referral from the Arizona Department of Economic Security (“AZDES”). AR at 551–
56. Plaintiff reported that the primary reason he is seeking disability benefits is due to his
chronic bilateral knee pain, initially diagnosed by the Army. Id. at 551. Plaintiff further
reported that he has dealt with the pain while working in security for more than twenty (20)
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years; however, his pain is such that he can no longer climb stairs or wear his gun belt. Id.
Plaintiff observed that beginning in 2020, “everything started to rapidly go down, with
chest pain[] [and] breathing difficulty.” Id. Plaintiff noted his blood sugar was at 400 and
blood pressure was very high. Id. Plaintiff reported left-sided numbness, and “[t]hey think
I may have had a ministroke because I seem to have lost some strength on my left side.”
AR at 551. Plaintiff described having daily pain, needing to use a cane, shortness of breath,
and chest pain Id. Plaintiff stated that aside from “some tachycardia” his heart was
otherwise good, and his care team things that the chest pain and shortness of breath are due
to his anxiety. Id. Plaintiff likened his anxiety to post-traumatic stress disorder (PTSD),
where it is trigger based by stressors such as his ex-wife and daughter. Id.
Dr. Rohen noted that Plaintiff “has been dealing with anxiety since he began having
conflict with his ex over their daughter.” Id. at 552. Dr. Rohen observed Plaintiff tearing
up while talking about the relationship with his ex and his anxiety. AR at 552. Dr. Rohen
observed that Plaintiff’s anxiety began approximately thirteen (13) years prior during his
relationship with his then-girlfriend. Id. Plaintiff reported that he would get upset for no
reason and have trouble calming down. Id. He explained that as his stress level rose, and
more recently with his medial scares, Plaintiff finds himself more irritable which leave him
stuck—unable to get up out of his seat—or suffering chest pains “because of his ex’s
controlling and manipulative behavior.” Id. Plaintiff reported “sleeping poorly because of
pain in his body – it awakens him.” Id. Plaintiff conveyed that his stamina is poor,
although his daytime energy level is fair, and his motivation and interest are good. AR at
552. Plaintiff observed that he has some depression, and was tearful relaying what he is
unable to do with his daughter. Id. Plaintiff reported that his appetite is intact, has not had
suicidal ideations, and no hallucinations or manic episodes. Id.
Dr. Rohen noted Plaintiff’s past work as a security guard, which “he had to resign
after becoming quite ill.” Id. Dr. Rohen recorded Plaintiff’s military service from 1995 to
1996; however, he was injured during training and unable to receive his Military
Occupational Specialty (MOS). Id. Plaintiff “was given a general discharge under medical
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conditions.” AR at 552. Dr. Rohen reported that Plaintiff earned a high school diploma;
studied a year and a half at community college, but could not afford to continue; and went
to design school but was expelled halfway through along with several others, because they
protested a broadly applied punishment. Id. Plaintiff denied the use of alcohol, as well as
other recreational drugs or medical marijuana, and does not have a history of substance
abuse. Id. at 552–53.
Plaintiff reported living with his sister and mother, with his 12-year-old daughter
staying with them on weekends, when he feels okay. Id. at 553. Plaintiff further reported
having chest pains, which will cause him to sleep for several hours. Id. Plaintiff’s sister
is employed full-time, and Plaintiff tries to help his mother with household tasks AR at
553. Plaintiff helps with dishes, but is limited on standing and uses a stool, tries to help
with laundry but has difficulty with the basket, and accompanies his mother to the grocery
store. Id. Plaintiff is able to drive and manage money. Id.
Dr. Rohen described Plaintiff “to be of average height and well-nourished,” casually
dressed for the appointment, with bilateral knee braces, as well as appropriate hygiene and
grooming. Id. Dr. Rohen reported Plaintiff’s “[a]ffect was full range, animated most of
the time, but tearful when talking about the frustration with his ex, and his sadness about
what he cannot do with his daughter.” Id. Dr. Rohen further described Plaintiff’s thoughts
as “linear and coherent, and retrograde memory appeared adequate to provide history[,]
with an average fund of knowledge. AR at 553. Dr. Rohen observed the rate and flow of
Plaintiff’s speech to be within normal limits, with his responses often overelaborated. Id.
Plaintiff relied on a small-point quad cane for ambulation, and twice, when he became
upset, Dr. Rohen noted a coarse tremor in his left hand. Id.
Dr. Rohen administered the Folstein Mini Mental Status Examination, with Plaintiff
scoring a 28 out of a possible 30. Id. Dr. Rohen reported that he was “alert and oriented
to four spheres[,] . . . succeeded in reversing the spelling of a common word . . . [and] was
able to register three unrelated words presented verbally after one exposure, and recall two
of them after a brief delay and interference task.” Id. Dr. Rohen noted that Plaintiff “read
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but did not follow a brief instruction.” AR at 553.
Based upon her clinical interview and available medical records, Dr. Rohen
diagnosed Plaintiff with an Unspecified Anxiety Disorder. Id. at 554. Dr. Rohen did not
find clinical depression and observed that although his “[a]nxiety negatively impacts his
quality of life, and may contribute to some of his health conditions[,]” she did not see a
clear impairment. Id. Dr. Rohen opined that Plaintiff would be able to manage any
benefits, if awarded. Id. at 554–55. Dr. Rohen further opined that Plaintiff’s conditions
would not impose any limitations for twelve (12) months. Id. at 555.
b. Robert Barlow, M.D.
On July 23, 2022, Plaintiff was examined by Robert Barlow, M.D. upon referral
from the AZDES. AR at 558–71. Dr. Barlow listed Plaintiff’s conditions, including
diabetes; chronic bilateral knee pain; hypertension; left-sided weakness and neuropathy;
solar urticaria; and anxiety. Id. at 558–59. Following a physical examination of Plaintiff,
Dr. Barlow assessed the following:
[T]he patient has mild left-sided weakness, peripheral neuropathy in the left
hand and foot, and impaired balance. Patient otherwise has no overt evidence
of acute of chronic physical illness and patient’s mental status was otherwise
stable today. Other than the above, the patient’s musculoskeletal
examination reveals intact ranges of motion and strengths.
Id. at 566. Regarding Plaintiff’s left-sided weakness and neuropathy, specifically, Dr.
Barlow reported:
Patient has had left-sided weakness and neuropathy since 2020 and has seen
a physician for these conditions. His symptoms include left-sided tingling
and lack of strength, and random failure to operate his left hand or knee. This
condition is currently untreated. During the physical examination, the patient
was able to perform most of the requested maneuvers while using his cane
for stability, but a couple of them he could not perform due to impaired
balance, even while using his cane for stability. There was mild left-sided
weakness, and decreased sensation to vibration, pinprick, and light touch in
the left hand and foot. When asked about his pain, he said it was 2/10 in his
knees at the beginning of the exam, and 4/10 at the end. He was in no acute
distress.
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Id. Dr. Barlow opined that Plaintiff’s conditions would impose limitations for 12
continuous months. Id. at 569. He reported that Plaintiff could occasionally lift or carry
up to 10 pounds, and frequently lift or carry less than 10 pounds. AR at 569. Dr. Barlow
based these conclusions on Plaintiff’s “mild left-sided weakness, peripheral neuropathy in
the left hand and foot, and impaired balance, and cannot lift or carry heavy objects.” Id.
Dr. Barlow further opined that Plaintiff had restrictions in standing and/or walking
limiting the same to between 2 and 4 hours per day. Id. In support of this conclusion, Dr.
Barlow reiterated, Plaintiff has “mild left-sided weakness, peripheral neuropathy in the left
hand and foot, and impaired balance, and cannot stand or walk for long periods of time.”
Id. Dr. Barlow confirmed that Plaintiff uses an assistive device for balance, it is necessary
for all terrains, and is medically necessary. Id. at 570. Dr. Barlow observed that Plaintiff
“uses a cane for stability while ambulating, as well as hard knee braces.” AR at 570. Dr.
Barlow opined that Plaintiff did not have any limitations in sitting, noting that he could sit
between 6 and 8 hours per day, and was also unlimited in his ability to see, hear, and speak.
Id.
Dr. Barlow opined that Plaintiff could occasionally climb ramps and stairs; reach
with the right but could never reach with the left; and handle, finger, or feel with the left
but was unlimited on the right. Id. Dr. Barlow further opined that Plaintiff could never
climb ladders, ropes, and scaffolds; stoop; kneel; crouch; crawl; or reach with his left. Id.
Dr. Barlow reported these findings were based on Plaintiff’s “mild left-sided weakness,
peripheral neuropathy in the left hand and foot, impaired balance, and uses a cane for
stability while ambulating, and is limited in performing” these activities. Id. Dr. Barlow
also opined that Plaintiff should not work around heights or moving machinery, but was
able to work around extremes in temperature; with or around chemicals; around dust/fumes
or gases; and around excessive noise. AR at 570. Dr. Barlow reiterated his findings
regarding Plaintiff’s left-sided weakness, peripheral neuropathy in the left hand and foot,
impaired balance, and cane use, as the basis for his opinion. Id.
. . .
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3. Reviewing Physicians
a. Andres Kerns, Ph.D.
On August 9, 2022, Dr. Kerns performed an initial review of Plaintiff’s medical
records. AR at 61–62, 72-73. Dr. Kerns opined that Plaintiff had “no significant
limitations due to a medically determinable mental impairment that interfere[s] with
sustained activities in a competitive, remunerative work context.” Id.
b. Keith Shelman, M.D.
On August 9, 2022, Dr. Shelman performed an initial review of Plaintiff’s medical
records and completed a physical residual functional capacity (RFC) assessment. AR at
59–61, 64–67, 73–76. Dr. Shelman found Plaintiff to have medically determinable
impairments including musculoskeletal system—other and unspecified arthropathies—
severe; neurological disorders—peripheral neuropathy—severe; and mental disorders—
anxiety and obsessive-compulsive disorders—not severe. Id. at 61. Dr. Shelman found
that Plaintiff’s symptoms of pain and loss of sensation were reasonably expected to produce
his pain or other symptoms, but opined that Plaintiff’s “[s]ubjective complaints are
disproportionate to objective observations.” Id. at 63, 74. Dr. Shelman further opined that
Dr. Barlow’s “opinion is an overestimate of the severity of the individual’s
restrictions/limitations.” Id. at 64, 75.
Dr. Shelman found Plaintiff to have exertional limitations. Id. Dr. Shelman opined
that Plaintiff could lift and/or carry (including upward pulling) twenty (20) pounds
occasionally and ten (10) pounds frequently. AR at 64, 75. Dr. Shelman further opined
that Plaintiff was unlimited in his ability to push and/or pull—other than lifting or
carrying—with his upper and lower extremities. Id. Dr. Shelman estimated that Plaintiff
could stand and/or walk for a total of six (6) hours in and eight (8) hour workday, with “[a]
medically required hand-held assistive device [] necessary for ambulation[.]” Id. Dr.
Shelman also opined that Plaintiff could sit, with normal breaks, for more than six (6)
hours on a sustained basis in an eight (8) hour workday. Id. Dr. Shelman confirmed that
“[a] cane is required for balance on all terrains.” Id. Dr. Shelman also confirmed that
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Plaintiff has postural limitations. AR at 64, 75. Dr. Shelman opined that Plaintiff could
occasionally climb ramps or stairs; balance; stoop; kneel; crouch; and crawl. Id. Dr.
Shelman noted, however, Plaintiff could never climb ladders, ropes, or scaffolds. Id. Dr.
Shelman further opined that Plaintiff did not have any limitations on his ability to
manipulate items, see, or communicate. Id. Regarding environmental limitations, Dr.
Shelman opined that Plaintiff was unlimited in his ability to be exposed to extreme heat or
cold, wetness, humidity, noise, vibration, or fumes, odors, dusts, gases, and poor
ventilation. Id. at 64, 76. Dr. Shelman reported Plaintiff should avoid concentrated
exposure to hazards. Id.
c. Raymond Novak, M.D.
On May 19, 2023, on reconsideration, Dr. Novak noted that Plaintiff “indicate[d]
no worsening, no new conditions, and no psych or cognition issues cited as interfering with
accomplishing daily activities.” AR at 82–84, 93–95. Dr. Novak further “[c]oncur[red]
with initial claim [psych] [medical consultant] assessment…mild limitations across
functional domains[.]” Id. at 84, 95 (ellipsis in original).
d. Carol Hutchinson, D.O.
On May 19, 2023, on reconsideration, Dr. Hutchinson noted “[s]ome changes to the
initial assessment based on re-review and new and material [medical evidence of record].”
AR at 88, 99; see AR at 81–83, 85–90, 93–94, 95–101. Dr. Hutchinson’s physical RFC
concurred with Dr. Shelman’s exertional and postural limitations. Id. at 86, 96–97.
Regarding environmental limitations, Dr. Hutchinson opined that Plaintiff was unlimited
in his ability to be exposed to humidity, noise, or fumes, odors, dusts, gases, and poor
ventilation. Id. Dr. Shelman reported Plaintiff should avoid concentrated exposure to
extreme heat or cold, wetness, vibration, or hazards. Id. at 86–87, 97–98.
II. STANDARD OF REVIEW
The factual findings of the Commissioner shall be conclusive so long as they are
based upon substantial evidence and there is no legal error. 42 U.S.C. §§ 405(g),
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1383(c)(3); Tommasetti v. Astrue, 533 F.3d 1035, 1038 (9th Cir. 2008). This Court may
“set aside the Commissioner’s denial of disability insurance benefits when the ALJ’s
findings are based on legal error or are not supported by substantial evidence in the record
as a whole.” Tackett v. Apfel, 180 F.3d 1094, 1097 (9th Cir. 1999) (citations omitted); see
also Treichler v. Comm’r of Soc. Sec. Admin., 775 F.3d 1090, 1098 (9th Cir. 2014).
Substantial evidence is “‘more than a mere scintilla[,] but not necessarily a
preponderance.’” Tommasetti, 533 F.3d at 1038 (quoting Connett v. Barnhart, 340 F.3d
871, 873 (9th Cir. 2003)); see also Garrison v. Colvin, 759 F.3d 995, 1009 (9th Cir. 2014).
Further, substantial evidence is “such relevant evidence as a reasonable mind might accept
as adequate to support a conclusion.” Parra v. Astrue, 481 F.3d 742, 746 (9th Cir. 2007).
Where “the evidence can support either outcome, the court may not substitute its judgment
for that of the ALJ.” Tackett, 180 F.3d at 1098 (citing Matney v. Sullivan, 981 F.2d 1016,
1019 (9th Cir. 1992)); see also Massachi v. Astrue, 486 F.3d 1149, 1152 (9th Cir. 2007).
Moreover, the court may not focus on an isolated piece of supporting evidence, rather it
must consider the entirety of the record weighing both evidence that supports as well as
that which detracts from the Secretary’s conclusion. Tackett, 180 F.3d at 1098 (citations
omitted). Additionally, the Court will only review issues raised by Plaintiff in this cause
of action. See Carmickle v. Comm’r, Soc. Sec. Admin., 533 F.3d 1155, 1161 n.2 (9th Cir.
2008).
III. ANALYSIS
A. The Five-Step Evaluation
The Commissioner follows a five-step sequential evaluation process to assess
whether a claimant is disabled. 20 C.F.R. § 404.1520(a)(4). This process is defined as
follows: Step One asks is the claimant “doing substantial gainful activity[?]” 20 C.F.R. §
404.1520(a)(4)(i). If yes, the claimant is not disabled. Step Two considers if the claimant
has a “severe medically determinable physical or mental impairment[.]” 20 C.F.R. §
404.1520(a)(4)(ii). If not, the claimant is not disabled. Step Three determines whether the
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claimant’s impairments or combination thereof meet or equal an impairment listed in 20
C.F.R. Pt. 404, Subpt. P, App.1. 20 C.F.R. § 404.1520(a)(4)(iii). If not, the claimant is
not disabled. Step Four considers the claimant’s residual functional capacity and past
relevant work. 20 C.F.R. § 404.1520(a)(4)(iv). If claimant can still do past relevant work,
then he or she is not disabled. Step Five assesses the claimant’s residual functional
capacity, age, education, and work experience. 20 C.F.R. § 404.1520(a)(4)(v). If it is
determined that the claimant can make an adjustment to other work, then he or she is not
disabled. Id.
In the instant case, the ALJ found that Plaintiff had not engaged in substantial
gainful activity since his alleged onset date of February 15, 2021. AR at 18. At step two
of the sequential evaluation, the ALJ found that “[t]he claimant has the following severe
impairments: diabetes with neuropathy, obesity, dysfunction of the bilateral knees, and
hypertension[.]” Id. (citing 20 CFR 404.1520(c), 416.920(c)). At step three, the ALJ
further found that “[t]he claimant does not have an impairment or combination of
impairments that meets or medically equals the severity of one of the listed impairments in
20 CFR Part 404, Subpart P, Appendix 1[.]” Id. at 20 (citing 20 CFR 404.1520(d),
404.1525, 404.1526, 416.920(d), 416.925, 416.926). Prior to step four and “[a]fter careful
consideration of the entire record,” the ALJ determined that “the claimant has the residual
functional capacity to perform light work as defined in 20 CFR 404.1567(b) and 416.967(b)
except he can sit, stand, and walk for six hours in an eight-hour day[;] . . . requires a single-
point cane for ambulation[;] . . . can occasionally lift and/or carry 20 pounds and frequently
lift and carry 10 pounds[;] . . . occasionally climb stairs but never climb ladders[;] . . .
occasionally stoop, kneel, crouch, and crawl[;] . . . [and] have only occasional exposure to
heights, moving machinery, wetness, humidity, temperature extremes, and vibrations.” Id.
At step four, the ALJ found that “[t]he claimant is capable of performing past relevant work
as a customer service representative, insurance[.] Id. at 23. The ALJ further found that
“[t]his work does not require the performance of work-related activities precluded by the
claimant’s residual functional capacity.” AR at 23 (citing 20 CFR 404.1565 and 416.965).
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At step five, the ALJ determined that “[b]ased on the testimony of the vocational expert . .
. [and] considering the claimant’s age, education, work experience, and residual functional
capacity, the claimant is capable of making a successful adjustment to other work that
exists in significant numbers in the national economy.” Id. at 25. Accordingly, the ALJ
determined that Plaintiff was not disabled. Id.
B. Medical Source Opinion
Plaintiff asserts that the ALJ’s “rejection of the opinion of Agency examining
neurologist Dr. Barlow” was not supported by substantial evidence. Opening Br. (Doc.
16) at 1, 12–24. Plaintiff urges that the ALJ lacked legally sufficient reasons for rejecting
Dr. Barlow’s findings regarding Plaintiff’s ability stand and/or walk during the workday,
as well as those related to Plaintiff’s ability to handle and finger with his left hand. See id.
12–24. Defendant argues (1) Dr. Barlow’s opinion regarding Plaintiff’s reaching and
manipulative problems were inconsistent with his own findings; (2) “[t]he ALJ recognized
that Dr. Barlow supported . . . [his standing and walking] opinion with examination
findings, but . . . looked to the broader record”; and (3) focused on the “primary complaint”
Plaintiff presented to Dr. Barlow. Response (Doc. 20) at 5–8. Plaintiff counters that the
Commissioner improperly relies on post hoc rationalizations. Reply (Doc. 21) at 5–6. The
Court agrees with Plaintiff.
1. Legal Standard
Section 404.1520c, 20 C.F.R., governs the analysis of medical opinions for
disability claims filed on or after March 27, 2017. “Under the revised regulations, ‘there
is not an inherent persuasiveness to evidence from [government consultants] over [a
claimant’s] own medical source(s), and vice versa.’”3 Woods v. Kijakazi, 32 F.4th 785,
791 (9th Cir. 2022) (alterations in original) (quoting Revisions to Rules Regarding the
Evaluation of Medical Evidence, 82 Fed. Reg. at 5844)). Rather, medical opinions are
3 The Ninth Circuit Court of Appeals has held that its previous “requirement that ALJs
provide ‘specific and legitimate reasons’ for rejecting a treating or examining doctor’s opinion . .
. is . . . incompatible with the revised regulations. Woods v. Kijakazi, 32 F.4th 785, 792 (9th Cir.
2022).
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evaluated pursuant to the factors set forth in Section 404.1520c(c)(1)–(5), with the most
important factors being supportability and consistency:
(1) Supportability. The more relevant the objective medical
evidence and supporting explanations presented by a medical
source are to support his or her medical opinion(s) or prior
administrative medical finding(s), the more persuasive the
medical opinions or prior administrative medical findings(s)
will be.
(2) Consistency. The more consistent a medical opinion(s)
or prior administrative medical fining(s) is with the evidence
from other medical sources and nonmedical sources in the
claim, the more persuasive the medical opinion(s) or prior
administrative medical finding(s) will be.
20 C.F.R. § 404.1520c(c); see also 20 C.F.R. § 404.1520c(b)(2). The regulations
specifically require the ALJ to explain how he or she considered supportability and
consistency in evaluating medical opinions and making the disability determination. 20
C.F.R. § 404.1520c(b)(2); see Kitchen v. Kijakazi, 82 F.4th 732, 739–40 (9th Cir. 2023).
Additionally, the ALJ may, but is not required to, consider other factors such as the medical
source’s relationship with the claimant, the medical source’s area of specialization, or
“evidence showing a medical source has familiarity with the other evidence in the claim or
an understanding of our disability program’s policies and evidentiary requirements.” 20
C.F.R. 404.1520c(c)(3)–(5).
2. Analysis
“Long-standing principles of administrative law require us to review the ALJ’s
decision based on the reasoning and factual findings offered by the ALJ–not post hoc
rationalizations that attempt to intuit what the adjudicator may have been thinking.” Bray
v. Comm’r of Soc. Sec. Admin., 554 F.3d 1219, 1225–26 (9th Cir. 2009) (citations omitted).
In the instant case, the ALJ discussed Dr. Barlow’s findings, as follows:
Dr. Barlow supported his opinions with evidence from his examination of
the claimant. ([AR at 566, 569]). His opinion that the claimant requires a
cane is consistent with the evidence showing intermittent, mild left-sided
weakness. However, the opinion that the claimant can only occasionally
reach, handle, finger, and feel with his left upper extremity is not supported
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by his examination. His examination showed only mild weakness but full
range of motion and good manipulative ability. ([AR at 563, 564]). It is also
not consistent with the treatment record which showed no significant
manipulative or reaching limitations. The finding that [t]he claimant can
stand or walk no more than four hours per day is not consistent with the
treatment record showing normal knee x-rays, normal range of motion in the
knees, and frequent unremarkable examinations.
AR at 23. Contrary to Defendant’s contention, the ALJ did not discount Dr. Barlow’s
opinion because of Plaintiff’s neuropathy. See id. Nor did the ALJ recognize that Dr.
Barlow relied on Plaintiff’s “mild left-sided weakness, peripheral neuropathy in the left
hand and foot, and impaired balance” as the basis for his findings. Compare id., with AR
at 569. “Even under the new regulations, an ALJ cannot reject an examining or treating
doctor’s opinion as unsupported or inconsistent without providing an explanation
supported by substantial evidence.” Woods v. Kijakazi, 32 F.4th 785, 792 (9th Cir. 2022).
Here, the ALJ did not acknowledge the basis for Dr. Barlow’s opinion, let alone provide
an explanation for rejecting it. See AR at 23.
Defendant also urges that “[i]t was entirely reasonable for the ALJ to focus on a
‘primary complaint’ Bachmann made to Dr. Barlow when evaluating the persuasiveness of
that opinion.” Response (Doc. 20) at 8. As an initial matter, Dr. Barlow noted “[t]he
patient's primary complaint is L sided weakness/neuropathy[.]” AR at 559. He found this
for each of the conditions Plaintiff listed on his application for disability benefits. See id.
at 558–59 (noting diabetes, chronic bilateral knee pain, hypertension, left sided
weakness/neuropathy, solar urticaria, and anxiety are “the patient’s primary complaint”).
Even if Defendant’s contention was correct, the ALJ must state that is what she is doing.
The Court is not required to guess what the ALJ was thinking when she wrote her decision.
See Bray v. Comm’r of Soc. Sec. Admin., 554 F.3d at 1225–26 (courts are required to
“review the ALJ’s decision based on the reasoning and factual findings offered by the
ALJ”). Accordingly, the Court finds that the ALJ committed legal error in rejecting Dr.
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Barlow’s opinions regarding Plaintiff’s ability to stand and/or walk.4
D. Remand
“‘[T]he decision whether to remand the case for additional evidence or simply to
award benefits is within the discretion of the court.’” Rodriguez v. Bowen, 876 F.2d 759,
763 (9th Cir. 1989) (quoting Stone v. Heckler, 761 F.2d 530, 533 (9th Cir. 1985)). “Remand
for further administrative proceedings is appropriate if enhancement of the record would
be useful.” Benecke v. Barnhart, 379 F.3d 587, 593 (9th Cir. 2004) (citing Harman v.
Apfel, 211 F.3d 1172, 1178 (9th Cir. 2000)). Conversely, remand for an award of benefits
is appropriate where:
(1) the ALJ failed to provide legally sufficient reasons for rejecting the
evidence; (2) there are no outstanding issues that must be resolved before a
determination of disability can be made; and (3) it is clear from the record
that the ALJ would be required to find the claimant disabled were such
evidence credited.
Benecke, 379 F.3d at 593 (citations omitted). Where the test is met, “we will not remand
solely to allow the ALJ to make specific findings. . . . Rather, we take the relevant testimony
to be established as true and remand for an award of benefits.” Id. (citations omitted); see
also Lester v. Chater, 81 F.3d 821, 834 (9th Cir. 1995). “Even if those requirements are
met, though, we retain ‘flexibility’ in determining the appropriate remedy.” Burrell v.
Colvin, 775 F.3d 1133, 1141 (9th Cir. 2014).
Here, the ALJ committed legal error in assessing Dr. Barlow’s medical opinion.
The Court has concerns that “[a]llowing the Commissioner to decide the issue again would
create an unfair ‘heads we win; tails, let’s play again’ system of disability benefits
adjudication.” Benecke v. Barnhart, 379 F.3d 587, 595 (9th Cir. 2004) (citations omitted).
There are two issues, however, which tip this matter in favor of remand. First, Plaintiff
requests reversal and remand for further proceedings. Opening Br. (Doc. 16) at 23.
4 Because the Court determines that the ALJ committed legal error regarding Dr. Barlow’s
opinion about Plaintiff’s ability to stand/walk, it does not address Plaintiff’s arguments regarding
his manipulative abilities or the propriety of the ALJ’s use of Plaintiff’s prior work as an insurance
customer service representative.
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Second, based on the record, it is not obvious to the Court that Plaintiff is disabled.
Correcting the ALJ’s error requires reconsideration of the evidence in this case. This
analysis may require reconsideration of the medical opinion evidence, as well as other
evidence in the record. The ALJ may also require additional vocational expert testimony
and to hold another hearing. Furthermore, the ALJ should reassess all of her findings
regarding Dr. Barlow’s opinion, not just those discussed in this report and
recommendation, as well as correct any errors regarding Plaintiff’s past relevant work.
IV. CONCLUSION
Based on the foregoing, the Court finds the ALJ committed legal error in assessing
the medical opinion evidence of Robert Barlow, M.D. The Court will recommend
remanding for reanalysis and rehearing.
V. RECOMMENDATION
For the reasons delineated above, the Magistrate Judge recommends that the District
Judge enter an Order REVERSING and REMANDING the Commissioner’s decision for
reanalysis and rehearing.
Any written objections to this Report and Recommendation shall be filed and served
on or before February 27, 2026. Any response to another party=s objections shall be filed
and served on or before March 6, 2026. No replies shall be filed unless leave is granted
from the District Court. No replies shall be filed unless leave is granted from the Hon.
Raner C. Collins. If objections are filed, the parties should use the following case number:
CV-25-00087-TUC-RCC.
Failure to file timely objections to any factual or legal determination of the
Magistrate Judge may result in waiver of the right of review.
Dated this 18th day of February, 2026.
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