Werle v. Astrue (633 F. Supp. 2d 857, 2009)

ORDER

FRANK R. ZAPATA, District Judge.

Plaintiff filed this action pursuant to 42 U.S.C. § 405(g) of the Social Security Act for judicial review of the final decision of the Commissioner of the Social Security Administration, denying her application for benefits.

This matter was referred to the United States Magistrate Judge for all pretrial proceedings and report and recommendation in accordance with the provisions of 28 U.S.C. § 636(b)(1) and LRCiv 72.1 and LRCiv 72.2, Rules of Practice of the United States District Court for the District of Arizona.

On April 7, 2009, Magistrate Judge Hector C. Estrada issued his in-depth Report and Recommendation, recommending that the District Court, after its independent review of the record herein, “(1) grant Plaintiffs Motion for Summary Judgment ... to the extent that: (a) this matter should be remanded for an immediate payment of benefits for the period beginning February 6, 2006; and (b) this matter should be remanded for further proceedings with regard to the period prior to February 6, 2006 for determination of the date of onset of the limitations identified by Dr. Ramirez on February 6, 2006; for determination of the impact of the side effects of Plaintiffs medication for mental impairments, back pain, and pain associated with kidney stones; and for further questioning of a vocational expert; and (2) deny Defendant’s Cross-Motion for Summary Judgment .... ”

The parties were given notice that, pursuant to 28 U.S.C. § 636(b), any party may serve and file written objections within ten days after being served with a copy of this Report and Recommendation. No objections were filed.

The Court, having made an independent review of the record herein, including the thorough procedural and medical history underlying Plaintiffs claimed psychiatric and medical disabilities, including back pain and kidney stones, under the relevant legal standards of review, as set forth in the Report and Recommendation, agrees with the findings of the Magistrate Judge and orders as follows:

IT IS ORDERED that Magistrate Judge Estrada’s Report and Recommendation [Doc. # 20] is hereby ACCEPTED and ADOPTED as the findings of fact and conclusions of law by this Court;

IT IS FURTHER ORDERED that Plaintiffs Motion for Summary Judgment [Doc. #11] is GRANTED in accordance with the findings and conclusions of the Report and Recommendation;

IT IS FURTHER ORDERED that Defendant’s Cross Motion for Summary Judgment [Doc. # 14] is DENIED;

IT IS FURTHER ORDERED that Plaintiffs claim for benefits is REMANDED to the Commissioner of Social Security Administration for an immediate payment of benefits for the period beginning February 6, 2006, in accordance with the Report and Recommendation;

IT IS FURTHER ORDERED that Plaintiffs claim for benefits is REMANDED to the Commissioner of Social Security Administration for further proceedings with regard to the period prior to February 6, 2006 for determination of the date of onset of the limitations identified by Dr. Ramirez on February 6, 2006; for determination of the impact of the side effects of Plaintiffs medication for mental impairments, back pain, and pain associated with kidney stones; and for further questioning of a vocational expert, in accordance with the Report and Recommendation;

Judgment shall be entered accordingly.

REPORT & RECOMMENDATION

HÉCTOR C. ESTRADA,

United States Magistrate Judge.

Plaintiff has filed the instant action seeking review of the final decision of the Commissioner of Social Security pursuant to 42 U.S.C. § 405(g). On that same date, Plaintiffs case was referred to the undersigned Magistrate Judge for a Report and Recommendation pursuant to the Rules of Practice of this Court.

On November 19, 2007, Plaintiff filed a Motion for Summary Judgment (Doc. No. 11) (hereinafter “Plaintiff’s MSJ”). Thereafter, Defendant filed a Cross-Motion for Summary Judgment (Doc. Nos. 14, 16) (hereinafter “Defendant’s XMSJ” ). For the following reasons, the Magistrate Judge recommends that the District Court: (1) grant Plaintiffs Motion for Summary Judgment; and (2) deny Defendant’s Cross-Motion for Summary Judgment.

I. PROCEDURAL HISTORY

On September 24, 2004, Plaintiff protectively submitted to the Social Security Administration (hereinafter “SSA”) an application for disability insurance benefits under Title XVIII of the Social Security Act alleging inability to work since December 9, 2002 due to “[d]egenera-tive/herniated disc, hip problems, [and] kidney stones.” (TR. 65-67, 130). Plaintiffs application was denied initially and on reconsideration. (TR. 47-49, 51-54).

Plaintiff then requested a hearing before an administrative law judge and the matter was heard on February 23, 2006 by ALJ Milan M. Dostal (hereinafter “the ALJ”). Plaintiff, represented by counsel, and Kathleen McAlpine, a vocational expert, testified before the ALJ. (see Doc. No. 634). On June 14, 2006 the ALJ denied Plaintiffs claim. (TR. 15-21). On June 22, 2007, the Appeals Council denied Plaintiffs request for review thereby rendering the ALJ’s June 14, 2006 decision the final decision of the Commissioner. (TR. 4-6). Plaintiff then initiated the instant action.

II. THE RECORD ON APPEAL

A. Plaintiffs general background and Plaintiffs statements in the record

Plaintiff was born on January 23, 1969 and was 37 years old on the date the ALJ issued his decision. (TR. 65). Plaintiff is married and lives with her husband and two children who are 19 and 16 years of age. (TR. 65, 645).

Plaintiff completed high school. (TR. 638). She has had no vocational training and did not attend college. (Id.). Plaintiffs work history includes employment as a veterinary and kennel technician from 1995 through 2000; a waitress from 1991 to 1995; and a sales clerk from 1990 to 1991. (TR. 119; see also TR. 638-642). Plaintiff testified that she last worked as a veterinary technician which required her, among other things, to lift dogs and cats, which were often in cages, and to administer vaccinations. (TR. 638-639; see also TR. 446). Her previous employment as a waitress required her to lift approximately 20 pounds. (TR. 641).

Plaintiff quit her work as a veterinary technician because of back pain. (TR. 651). Her employer had attempted to accommodate her by assigning her to the surgery schedule so that she would be able to sit more and have more flexibility about her movement. (Id.). When that became too much, she was moved to the lab but the standing bothered her back. (Id.). Finally she was placed at the front desk to answer phones and her hours were reduced. (Id.). Working at the front desk was difficult for Plaintiff because she had to bend and stoop to retrieve files and the movement made her back pain worse. (TR. 652).

Plaintiff experiences back pain four days out of a seven-day week. (TR. 80,649). The pain travels from her lower back midway down her left thigh. (Id.). Sometimes, lying down with a pillow between her leg helps. (Id.). Prolonged standing, excessive walking, and sitting too long makes her pain worse. (Id.). She also experiences back pain from lifting, bending, and stair climbing. (TR. 84). “I also get hip pain from prolonged walking or stair climbing. Sometimes pain for no reason.” (Id.). When she is in pain, she does not “even want to walk.” (TR. 650). On a good day she can walk a couple of blocks before her “back starts acting up.” (Id.). Sometimes pain will interfere with Plaintiffs sleep. (TR. 80). If she stands too long in the kitchen preparing meals, her back will hurt. (TR. 81).

Plaintiff gets kidney stones “maybe every month.” (TR. 643). When she has a stone she is in pain “for about three weeks, sometimes longer.” (Id.). When Plaintiff has kidney stones, she is unable to “go about [her] business.” (TR. 650). The pain renders her unable to cook and clean for her family and she is unable to get comfortable or to sleep well. (TR. 118). Once she had a stone that remained in place for two months and finally had to be removed. (TR. 643).

Plaintiff underwent gastric bypass surgery in 2005. (TR. 644). She has since lost 110 pounds. (Id.). However, the surgery caused a reduction in the amount of fluids she is able to ingest which, in turn, aggravates her kidney stone condition. (Id.). She needs to drink a lot of fluids to aid with passing stones. (Id.). After the surgery she was advised to eat a high protein diet with leafy greens and lettuces. (Id.). Yet, high protein diets lead to kidney stones and calcium in the greens also affect kidney stones. (Id.). “[S]o ... because of the surgery, I had to do two things that basically kind of worsened up the stones.” (Id.).

Plaintiff has taken the following medications: Celebrex for inflammation; Per-cocet for pain; Triamterene/HCTZ for kidney stones; muscle relaxers for back pain; Lorazepam for anxiety; Cloraxepan for anxiety; and Prozac for depression. (TR. 134, 647-648, 650). Triamterene/HCTZ makes Plaintiff weak and light headed. (TR. 134). Lorazepam, which Plaintiff takes three times a day, makes her “a little light headed ... a little out of it” for a couple of hours and she becomes forgetful. (TR. 647-648). Percocet “really makes me out of it. I can do very little on that” for about three or four hours. (Id.). “The muscle relaxers ... kind of make me out of it also.” (TR. 647-648). When she is taking Percocet, her children will cook and clean for her. (TR. 648).

On a typical day, Plaintiff cleans the house, runs errands, reads, watches television, and makes dinner. (TR. 79, 112). Plaintiff does most of the cooking and cleaning for her family. (TR. 645-646). She is able to drive. (TR. 646). She feeds her pets, cleans up after them, and sometimes takes them for walks. (TR. 80, 112). Her children and husband will bathe the animals and sometimes assist with feeding them. (TR. 80). Although Plaintiff does the laundry and dusting twice a week, waters the garden, and does other cleaning, her family will sometimes have to help if Plaintiff is experiencing “bad pain.” (TR. 81, 113). Plaintiff also stated that “[c]ertain medications I take prevent me from taking care of myself or family (ex. cooking, driving).” (TR. 91). Plaintiff goes grocery shopping once a week for approximately 1 and one-half hours. (TR. 82); see also TR. 114 (stating that she goes shopping “about every 2 weeks” for one and one-half hours) Grocery shopping will usually cause back pain after an hour. (TR. 116). Plaintiff used to spend hours gardening “but it now causes too much pain.” (TR. 83). Now she gardens twice a week, cannot stand or stoop for very long periods, and is unable to bend over to plant. (TR. 83, 115). She “mostly water[s] and pick[s] any occasional weed.” (TR. 83). Plaintiff keeps in touch with others by computer emails, talking on the phone, meeting for lunch and dinner, and “sometimes go[ing] to the mall.” (TR. 115). If Plaintiff goes to a place where there is a lot of walking, she must stop often and sit “or else I will be painful [sic].” (TR. 84). She can walk one-half mile to one mile before needing to stop and rest. (Id; see also TR. 116 (Plaintiff can walk for 20 minutes and must rest 5 minutes before resuming)).

B. Medical Evidence

1. Plaintiff’s Treating Physicians

a. Back Pain

In March 1996, Plaintiff complained to medical providers at Hurlburt Acute Care about back pain. (TR. 421). She reported that her work required a lot of bending, stooping and lifting. (Id.). She was given Motrin and other medication. (Id). Plaintiff returned in July 1996 again complaining of back pain and spasm. (TR. 422). She reported no recent trauma but that she had been packing to move. (Id). She was assessed with acute lumbar strain, directed to bed rest for 48 hours and prescribed Motrin and Flexeril. (Id). A work excuse was also provided. (Id).

In August 1996, Plaintiff saw Richard Sheldon, D.C., for low back pain and leg pain on the left. (TR. 423). She told him she had strained her back five months earlier while at work. (Id). Plaintiff rated the pain in her lumbar region at a “7” with 10 being intolerable. (Id). Dr. Sheldon assessed: lumbalgia, and sciatica caused by lumbar strain/sprain complicated by “[l]umbar I.V.D. degeneration-this is a possibility, or could be Congenital thinning of L5-S1 level.”. (Id).

Plaintiff returned to Hurlburt Acute Care with complaints of back pain in August 1996 reporting that bed rest, muscle relaxants and a visit to the chiropractor brought her no relief. (TR. 424). The assessment was low back pain with left leg and radiculopathy at “L5/S1.” (Id). Plaintiff was prescribed Tylenol 3 and bed rest. (Id). In September 1996, Plaintiff was continued on Tylenol 3 and Flexeril. (TR. 425). A November 1996 record reflects that Plaintiff underwent steroid injections six weeks earlier and that the injections helped her pain. (TR. 426). Plaintiff also underwent physical therapy in November and December 1996 for low back pain on her left side. (TR. 426, 428).

Thereafter, the record reflects that Plaintiff was “pain free” until she began experiencing lower back pain in April 2001 possibly due to heavy lifting at work for three to four weeks before the onset. (TR. 446). Ten months prior to onset, Plaintiff had been moving all sizes of dogs and cages at work. (Id).

On April 30, 2001, Dr. Craig R.K. Pack, Capt., USAF, M.C., indicated that Plaintiff was to be given work duties that “will not have her lifting greater than 20 lbs or standing longer than two hours at a time until 7 May 01.” (TR. 398). Due to Plaintiffs continued complaints of back pain, the work restriction was continued for two additional weeks. (TR. 399, 401). On May 8, 2001, David L. Chin, Maj. USAF, MC, FS, indicated that effective May 22, 2001, Plaintiff was further restricted to “no lifting” and “no standing ovér 5 minutes.” (TR. 408). During this time Plaintiff was prescribed Naprosyn and was referred to physical therapy. (TR. 400; see also TR. 403 (patient “with lower back pain not improving adequately with conventional pain meds including percocet.”)). On May 17, 2001, Plaintiffs limitations were changed to light duty for 30 days, no lifting greater than 20 pounds, no prolonged standing, no running, jumping or climbing. (TR. 405; see also TR. 409 (efforts documented by Plaintiffs employer to comply with work restrictions)).

In May 2001, Plaintiff attended “back school” regarding prevention of back pain. (TR. 406^07). By July 2001, Plaintiff had completed physical therapy and her condition was improving. (TR. 410, 446, 00310 ). As of July 2001, her diagnosis was low back strain. (TR. 446). “Most days [patient] has full r[ange] o[f] m[otion] and no pain. Does have intermittent l[ow] b[aek] p[ain] [about] 2 times /wk. Pain is dull and causes little interference in daily activity skills when present.” (Id.).

Plaintiff continued to complain about low back pain in November and December 2001. (TR. 412, 414). In November, she was restricted to lifting no more than 25 pounds. (TR. 413). Treatment included prescriptions for Valium, Tylenol 3, heat, ice, and stretching exercises. (TR. 414). Also, in December, Plaintiff complained that the pain radiated from her low back to her buttock and thigh. (TR. 418). An MRI was scheduled. (Id.).

In January 2002, Neurosurgeon Cyril T. Sebastian, M.D., noted that Plaintiffs examination was unremarkable but her MRI results showed “L5-S, degenerated and herniated disc.” (TR. 444). Dr. Sebastian diagnosed Plaintiff with lumbar disc degeneration and herniated disc at L5-S1. (TR. 369). He referred Plaintiff to physical therapy and limited her to “no prolonged standing or heavy lifting over twenty pounds ... for two months”, no bending, pushing or pulling, and limited squatting and climbing for only one hour per day. (TR. 369-370, 452).

By March 2002, Plaintiff reported no improvement from physical therapy. (TR. 374). Dr. Sebastian noted that “a simple discectomy would be unlikely to help. A fusion is the best option if it comes to surgery.” (Id.). Plaintiff indicated to Dr. Sebastian that she did not want steroid injections because “[s]he has tried them in the past with only temporary improvement.” (TR. 375). Plaintiff was continued on physical therapy with a change in exercises. (Id.). Dr. Sebastian continued Plaintiffs restrictions of no prolonged standing or heavy lifting over twenty pounds for the next three months. (TR. 376). Through June 2002, Plaintiff continued on Valium but it did not help the pain. (TR. 379-380).

A July 8, 2002 Provider’s Note indicated that Plaintiff had “chronic intermittent L[ow] B[ack] P[ain] secondary to H[erniat-ed] N[ucleus] P[ulposus] and over-weight____ [Patient] has been evaluated by Neurosurgery and has been offered surgery vs steroid injections. [Patient] previous [sic] declined both. Now considering steroid injections. [Patient] has been requiring Percocet or Valium every other month for a couple days on average when pain gets severe.” (TR. 381). In late July 2002, with continued complaints of increasing low back pain, which was worse with prolonged standing and which occasionally radiated to her left hamstring, Plaintiff began epidural steroid injections. (TR. 385). The following month, Plaintiff reported “some relief.” (TR. 386). Later, in August 2002, Plaintiff reported back pain resulting from wrestling with a co worker. (TR. 388). In November 2002, she fell from her swivel chair at work and pain developed. (TR. 393). On November 20, 2002, Dr. Sebastian noted Plaintiffs report that the “pain comes and goes” and that two epidural steroid injections did not help. (TR. 397). He diagnosed “L4-5 degenerative disc disease. L4-5 fusion may be helpful but will need to lose weight.” (Id.). He referred Plaintiff to a dietician. (Id.).

By January 2003, Plaintiff reported that she was trying to lose weight with slow progress. (TR. 318). In March 2003 Plaintiff continued reporting back pain radiating to her left leg. (TR. 323-324) Her pain was 6 out of 10. (TR. 324). Assessment was low back pain with sciatica and she was prescribed Percocet, Elavil, Zan-tac, and directed to continue physical therapy. (Id.).

In July 2003, Plaintiff reported that the pain increased with forward flexion. (TR. 336). She also stated that although exercises have helped in the past, “she tends to quit doing them when the pain diminishes....” (Id.). She “has considered having a stomache [sic] banding procedure to help lose weight so that her exercise tolerance might be better....” (Id.). Plaintiffs back pain radiating to her lower left side was exacerbated because she was packing to move and was bending and lifting light boxes and items. (TR. 338; see also TR. 337). Plaintiff was given an injection of Ketorolac, was prescribed Valium, and a heating pad was recommended. (TR. 337, 340).

September 2003 treatment notes indicate that Plaintiff has “received long standing ...” physical therapy and is obese. (TR. 347). “She was seen by neurosurgery who declined to operate until she loses weight.” (Id.). In October 2003, Plaintiff reported that her hip felt better in the morning and pain worsened with activity. (TR. 350). Physical therapy for low back pain also caused pain in her hip. (Id.). By December 2003, the assessment included low back pain and “possible SI joint inflam[mation] ...” and she was continued on Celebrex. (TR. 365). Plaintiff also continued in physical therapy through the end of 2003. (TR. 352, 351-356).

In December 2003, Plaintiff reported that Vioxx and Celebrex caused heart burn. (TR. 363, 364).

Plaintiff was continued on physical therapy through 2004. (TR. 306-308). In July 2004, when Plaintiff presented with complaints of back pain, she also expressed concerns about anxiety and was referred to “life skills for psychiatry.” (TR. 310) (also indicating diagnosis of anxiety disorder not otherwise specified, mild)

A December 2004 MRI reflected: “L4-5: Mild disc bulging and possible tiny left disc protrusion, not displacing left L5 nerve.... Otherwise normal exam (T10-S2 levels).” (TR. 304.).

In January 2005, Flight Surgeon Lisa B. Fireston upon review of the 2004 MRI results indicated no foraminal narrowing and no nerve impingement. (TR. 302). She assessed “mild degenerative disc ...” disease as per the MRI. (Id.).

As of May 2005, Plaintiffs weight was 273 pounds and she was 66 inches in height. (TR. 187). On June 28, 2005, Plaintiff underwent gastric bypass surgery. (TR. 142-145; see also TR. 159 (Plaintiffs psychiatrist noted that Plaintiff “has gone to get gastric surgery to assist her in losing her excessive weight which should alleviate her chronic pain in the hip, back, and general body aches.”)) Preoperative and postoperative diagnoses were: medically complicated obesity. (TR. 144). By March 2006, Plaintiff had lost 110 pounds. (TR. 626; see also TR. 553).

In January 2006, Plaintiff reported shooting back pain radiating from her back to her legs. (TR. 476). She exhibited pain on flexion of the L-S spine. (Id.). Assessment was “acute on chronic low back pain ...” with L5 radiculopathy. (Id.). She was given Flexeril and Amityptline and instructed to apply ice and heat. (Id.).

In January 2006, Plaintiff saw Charles Needham, M.D., for a consultation regarding back and left leg pain. (TR. 495-497). On physical examination he noted that Plaintiff “has some pain on flexion and hyperextension of the lumbar spine, although her range of motion is fairly good. Straight leg raising similarly was good at 90% bilaterally with no evidence of any paralysis.” (TR. 496). He requested an MRI. (IcL). A January 25, 2006 MRI showed: “[s]mall left-paracentral disk bulge at L4-L5, without evidence of significant canal or neural foraminal steno-sis.... The disk at this level is moderately desiccated, and the disk space at this level is moderately narrowed. There is additional mild facet joint arthropathy at this level.” (TR. 498-499). When Dr. Need-ham saw Plaintiff in February 2006, he opined that

she is not a surgical candidate at present, although she might be a surgical candidate in the future if her pains become more severe and more consistent. She has the pains approximately 4 days out of every 7, and on the 3 good days she is apt to have occasional pains. She has had difficulty at work in the past because of her intermittent pains, and during those episodes she needs to lie down. I do consider her disabled from work at present. I told her that the disk rupture is a chronic one....

(TR. 503-504). His “FINAL DIAGNOSIS” was degenerative disk disease L4-L5 with lateral disk rupture on the left L4-L5 and lumbar spondylosis with facet arthro-pathy L4-L5 bilaterally, L5-S1 bilaterally. (TR. 504). Dr. Needham set the following work restrictions: Plaintiff could lift less than 10 pounds; she could stand and/or walk less than 2 hours in an 8-hour workday; she could sit less than 6 hours in an 8-hour work day; she was limited in pushing and pulling in her lower extremities; she could never climb, balance, stoop, kneel, crouch, crawl; and she could occasionally reach in all directions. (TR. 505-506). He further indicated that Plaintiffs ability to function was moderately affected and that she was unable to work at present. (TR. 507).

b. Kidney Stones

In October 2000, Plaintiff presented to the emergency room with “left renal colic.” (TR. 420). A November 17, 2000 CT scan of the abdomen revealed a kidney stone. (Id.). Plaintiff was given the option of surgical removal through ureteroscopy or hydration and pain management and she chose aggressive hydration and pain management. (TR. 419).

On May 9, 2003, Plaintiff reported passing a kidney stone the night before, that she had a history of kidney stones, and that her abdominal pain decreased since passing the stone. (TR. 327). A May 21, 2003 CT can revealed “[a] 6 mm left distal ureteral stone without evidence of associated obstruction on ... that side” and “small intrarenal stones in the mid poles bilaterally.” (TR. 330).

On June 6, 2003, Plaintiff returned to the emergency room complaining of abdominal pain and was prescribed Levaquin and Colace. (TR. 333). On June 24, 2003, she brought to her medical provider a kidney stone that she had passed the week before. (TR. 335).

In July 2003, she once again presented to the emergency room complaining of abdominal pain for the past three days in addition to pain in her left flank and lower back. (TR. 341). The assessment was kidney stone (renal lithiasis) and Plaintiff was prescribed Percocet. (TR. 342). Urological laboratory results showed Plaintiff had “increased urinary calcium and acid pH.” (TR. 344). The stone analysis showed primarily calcium oxalate and some calcium phosphate. (Id.). Plaintiff was advised to continue regimen of increased fluids limiting calcium in her diet. (Id.).

In September 2003, Plaintiff presented with complaints of sharp pain in her left lower back and stomach; she was prescribed medication, including Percocet as needed for stone pain; and followed up with urology who advised her to increase urinary output to two litres per day. (TR. 346, 348). In November 2003, Plaintiff was prescribed Darvocet for pain associated with kidney stones. (TR. 358). A November 6, 2003 CT scan showed

several 1-2 mm. punctate calcifications noted within the medullary portion of both kidneys (medullary nephrolithiasis). There are no ureteral calculi evident. There is no evidence of hydronephrosis involving either renal collecting systems. The kidneys appear morphologically normal without focal renal lesion or mass. There are no perinephric fluid collections evident.

(TR. 359). The impression was: “Findings of bilateral medullary nephrolithiasis.” (Id.).

On December 3, 2003, Plaintiff was assessed with recurrent stone disease, “the medullary [illegible] ... raises the question of medullary sponge kidney ... Diet rich in protein ... may aggravate stone disease ... sleep apnea ... [illegible].” (TR. 361). On December 23, 2003, Plaintiff presented with pain that felt like a spasm. (TR. 367). She reported that Darvocet provided no relief. (Id.). The assessment was kidney stone and Percocet and hydration were prescribed. (Id.).

A January 2004 CT scan showed “[m]ul-tiple small bilateral renal calculi, with no evidence for hydronephrosis.” (TR. 440). (“several less-than-3-mm renal calculi bilaterally ... There are no ureteral stones identified.”).

In February 2004, Plaintiff complained of abdominal pain associated with kidney stones. (TR. 307). In March 2004, she presented with complaints of recurrent left flank pain radiating into the left lower quadrant which was similar to pain she felt with kidney stones. (TR. 438). The attending physician indicated that Plaintiff was “probably passing [a] small stone ...” and prescribed Percocet. (TR. 439). In May 2004, Plaintiff reported passing “a little gravel” two weeks previously. (TR. 436). The assessment was renal stone disease-active. (TR. 437). Plaintiff was directed to continue on Dyazide and to stay hydrated. (Id.). Plaintiff again presented with pain associated with kidney stones in June 2004. (TR. 309). In August 2004, Plaintiffs Darvocet prescription was refilled with regard to “calculus of ureter.” (TR. 311). In September 2004, Plaintiff presented with right-sided flank pain and was continued on Darvocet. (TR. 434-435).

An October 2004 CT scan showed a “5 x 3 mm stone just inside the bladder and adjacent to the right ureterovesical junction ... [and] small punctate renal stones” as well as “a large ‘nephro-ealculith’ in the right inferior renal pole which measures 4.6 x 3 mm.” (TR. 432).

In November 2004, Plaintiff presented four times with complaints of abdominal pain. (TR. 312 (November 10, 2004, seeking treatment at urgent care); TR. 313 (November 12, 2004, still having back pain); TR. 316 (November 16, 2004, because shooting abdominal pains were “unrelenting [with] Darvocet”, Percocet was prescribed); TR. 429-430 (November 17, 2004, where assessment was chronic pain from nephrolithiasis, “persistent hypereal-ciuria despite HCTZ ... ”)).

A January 2005 record reflects that Plaintiff passed her first stone in October 2000, she has passed multiple stones since that time, and the last stone passed was in October 2004. (TR. 298). The assessment was recurrent renal stones, elevated “U e[itrate]”. (TR. 297). She was continued on HCTZ. (Id.). In February 2005, Plaintiff presented with left flank pain similar to pain associated with kidney stones. (TR. 303, 279). She stated that, on the pain scale, the pain ranked at 3 but it was at 6 the previous night. (Id.). Assessment was recurrent nephrolithiasis and Percocet was prescribed. (Id.).

Plaintiff changed medical facilities and in March 2005 when she was seen to establish care at her new location, she complained of left lower quadrant pain beginning the previous day. (TR. 282).

An April 2005 CT scan showed “[s]table small bilateral renal calculi.” (TR. 285, 295). On April 18, 2005, Plaintiff was examined by Sanjay Ramakumar, M.D. who also reviewed Plaintiffs prior MRIs. (TR. 291-293). Dr. Ramakumar’s assessment was bilateral renal calculi with recurrent nephrolithiasis and recently passed right ureteral calculus. (TR. 293). He recommended against surgical “removal of her punctate renal calculi.... She will be better served by an aggressive metabolic evaluation and medical management. We will refer her back to the stone clinic for completion of her evaluation and recommendations by the nephrologist.” (Id.).

In May 2004, Plaintiff saw Howard Lien, M.D., at the University of Arizona Renal Stone Clinic. (TR. 195-196). Her physical examination was unremarkable and she did not exhibit costovertebral angle tenderness (hereinafter “CVA”). (TR. 195). The assessment was bilateral nephrolithia-sis and Plaintiff was asymptomatic and doing well at that time. (Id.).

In June 2005, Plaintiff saw William Walker, Capt. USAF, MC, FS, to renew pain medication “due to stone passage” and was prescribed Percocet. (TR. 277). On June 11, 2005, Plaintiff presented to the emergency room with multiple tiny stones in her right kidney. (TR. 274-276). At a July 26, 2005 appointment for evaluation of blood in urine, physical examination showed Plaintiff had no CVA tenderness. (TR. 170).

On August 22, 2005, Plaintiff requested a refill of pain medication for “lots of pain.” (TR. 211). At an appointment the next day, she reported experiencing pain the previous three days and blood in her urine. (TR. 210). She also reported that she had been to the emergency room the week before. (Id.; see also TR. 212 (August 2, 2005 note regarding follow up after Plaintiffs July 29, 2005 emergency room visit)) The assessment was kidney stones and Ultracet and increased fluid intake were prescribed. (TR. 210; see also TR. 209 (Ultracet was changed to Percocet after stomach upset)).

A September 7, 2005 CT scan revealed “[ijnterval development of mild right hy-dronephrosis, with a 5.8-cm right mid ur-eteral calculus present.” (TR. 202). Comparison with previous studies showed a “decrease in the number of previously-mentioned bilateral renal calculi. In addition, there has been interval development of mild to moderate right hydronephrosis. There is mild to moderate right hydroureter present to the level of the mid ureter, where there is a 5.8-x-4-cm calculus present. Mild periureteral stranding is additionally present.” (Id.). A September 19, 2005 CT scan showed a “5-mm stone in the distal right ureter which likely represents the previously described stone in a more distal position.” (TR. 200). No new renal or ureteral calculi were identified and there was no significant hydronephro-sis. (TR. 201). On September 20, 2005, Plaintiff, with a diagnosis of right ureteral calculus, underwent a[c]ytoseopy, right ur-eteroscopic laser lithotripsy. (TR. 197-198).

In November 2005, Plaintiff was treated for urinary tract infection. (TR. 481). On December 5, 2005, she presented with complaints of pain associated with kidney stones and she was prescribed Darvocet and Toradol and directed to stay hydrated. (TR. 479). Even though her pain eventually subsided, it returned on December 23, 2005. (TR. 478). She reported that she had seen “gravel” upon urination. (Id.). Upon examination Plaintiff had mild diffuse tenderness at the left “upper/lower back .... ” and mild CVA tenderness. (Id.). Toradol was prescribed. (Id.).

In early January 2006, Plaintiff continued to complain of pain associated with kidney stones. (TR. 477). On examination, she exhibited CVA tenderness on the left side. (Id.). Darvocet was prescribed. (Id.).

On April 5, 2006, Plaintiff saw Dr. Lien for follow up. (TR. 587-588). She complained of experiencing left flank pain for the previous two weeks and reported “a couple of episodes of urinary tract infection .... She was told to have crystals in her urine.” (TR. 587). Physical examination was unremarkable. (Id.). Dr. Lien’s assessment was “[r]enal stone, the stones have been removed. She has symptoms again.” (Id.). He noted that her urinary tract infection had resolved. (Id.). He continued Plaintiff on Percocet for flank pain and scheduled a followup appointment for the next month. (Id.). An April 21, 2006 CT scan showed “2 mm nonobstruct-ing calculus within the upper pole of the left kidney.” (TR. 590). No additional renal or ureteral calculi were identified. (Id.).

On May 16, 2006, Plaintiff sought treatment for blood in her urine. (TR. 617). There was no evidence of infection. (TR. 619). Plaintiff received pain medication. (Id.). Dr. Lien saw Plaintiff again on May 22, 2006. (TR. 584). She reported passing a small stone two days earlier. (Id.). “She had gross hematuria on 05/18 which is cleared now. She still has pain in her left flank and the left lower quadrant.... Her pain reached at peak on Saturday and now has significantly improved.” (Id.). Dr. Lien noted that lab results from April and May 2006 showed blood trace protein. (Id.). He assessed renal stone, opined that her current pain was “probably due to ureter spasm” and prescribed Percocet. (Id.).

On June 1, 2006, Plaintiff complained of “severe pain ...” from kidney stones and that Percocet was upsetting her stomach. (Tr. 615). Vicodin was prescribed. (TR. 616). On June 2, 2006, Plaintiff presented for treatment with complaints of abdominal pain in the left lower belly. (TR. 613, 614). Plaintiff returned for treatment on June 13, 2006 stating that she had “a pain free day yesterday but the day before the pain was the worst it had been in a while. Today it is there 4/10. [P]ain is LLQ without radiation” and Vicodin was not providing relief. (TR. 607). On exam, Plaintiff was tender to palpation in the left lower quadrant of her abdomen. (TR. 608). Oxycodone/APAP (Percocet) was prescribed. (Id.). On June 15, 2006, Plaintiff presented at the emergency room complaining of constant and sharp abdominal pain in her lower left quadrant. (TR. 538 (Plaintiff rated the pain at 6/10)). On physical examination, Plaintiff “appealed] somewhat uncomfortable”, her abdomen was mildly tender on palpation óf the left lower quadrant and left lateral quadrant, and she showed no significant CVA tenderness. (TR. 538-539). A CT scan showed a “stone in the ureter on the left side that is 5 mm.” (TR. 539; see also TR. 542). The attending physician, Laurie Herrera, M.D., discussed removal of the stone with Plaintiff and Plaintiff opted to follow up with her urologist. (TR. 539). Diagnosis was kidney stone and mild urinary tract infection. (Id.). Plaintiff was prescribed Levaquin, increased dosage of Percocet, and Phenergan. (Id.). At a June 19, 2006 followup appointment with physician Brian Jenkins, Plaintiff was still experiencing constant pain in her low left quadrant, which she ranked as “5/10 ...” and her urine was tea colored. (TR. 604). Physical examination revealed direct tenderness in Plaintiffs left lower quadrant. (Id.). Dr. Jenkins assessed hydroureteronephro-sis, injected Ketorolac and prescribed Oxy-codone/APAP (Percocet). (Id.).

On June 20, 2006, Plaintiff saw urologist Peter J. Burrows, M.D. (TR. 527). Plaintiff reported that she was taking the following medications: Prozac, Lorazepam, Clonazepam, Allopurinol, Percocet, Leva-quin, Phenergan, and vitamins. (TR. 525, 527). Dr. Burrows noted Plaintiffs three-to-four year history of kidney stones. (TR. 527). His impression included: “persistent kidney stones ... with left abdominal pain. CT scan on 6-15-06 revealing upper tract left ureteral stones and proximal hydronephrosis ... ”, “[Ijarge microscopic hematuria”, and “[cjoneomitant medical diseases including status post gastric bypass, anxiety, depression, and elevated uric acid.” (TR. 527-528). He planned tests to determine whether “this is truly a calcium oxalate stone or perhaps a uric acid stone.” (TR. 528). He prescribed Percocet for pain management. (Id.). On June 27, 2006 Plaintiffs Perco-cet prescription was refilled. (TR. 602). A June 21, 2006 radiologic examination report reflected “amorphic left calcification consistent with history, though nonspecific.” (TR. 530).

A July 14, 2006 CT scan showed “a 3.5 mm calculus situated within the proximal to mid left ureter associated with mild hydronephrosis of the proximal left renal collecting system.” (TR. 535). On July 26, 2006, Dr. Burrows performed a “[Ijeft ureteroscopy with laser tripsy, stone bas-keting, and stent placement.” (TR. 523). He noted that since Plaintiffs gastric bypass surgery, she has had a long history of uric acid stones. (Id.). A “computed tomography scan revealed persistent moderate hydronephrosis with distal 3-4 mm impacted ureteral stone.” (Id.). Plaintiff was released with prescriptions for Vicodin and Ciprofloxacin and was scheduled to have the «tent removed one week after the surgery. (TR. 524, 521).

On August 1, 2006, Dr. Burrows removed the stent and noted that Plaintiff “is a metabolic stone former, likely from her gastric bypass forming uric acid stones from shortcuts.” (TR. 518). He continued her on Allopurinol. (Id.). On August 16, 2006, Plaintiff reported left abdominal pain and requested pain medication because Tylenol was not helping. (TR. 517). An August 22, 2006 CT scan revealed no stones and that “[Ijeft hydronephrosis had resolved well.” (TR. 534). Plaintiffs August 22, 2006 request to switch from Per-eocet, which was making her sick, to Vico-din was denied because she did not have any kidney stones. (TR. 516). On August 28, 2006, Plaintiff reported “non-stopping pain ...” and a CT scan was ordered. (TR. 515).

c. Psychiatric

In April 2005, as part of the presurgical screening process for gastric bypass surgery, Plaintiff underwent a psychological screening with Sean Flynn, Ph.D. (TR. 167-168). Dr. Flynn’s behavioral observations included Plaintiffs “thought process appeared logical and coherent. Her mood appeared euthymic and her affect was mood congruent. There was no evidence of perceptual problems.... Her cognition appeared grossly intact and her insight and judgment appear to be good.” (TR. 168). Results from the Minnesota Mult-phasic Personality Inventory-2 (hereinafter “MMPI-2”) suggested that Plaintiff

responded in a way that is similar to individuals who are not experiencing a great deal of emotional difficulty at this time. However, she did have a response pattern similar to individuals who are experiencing some symptoms of depression, particularly the subjective elements of depression such as having unhappiness, low energy, nervousness, feeling inferior, etc. Other scales on the MMPI-2 on which she scored differently than an average woman also suggested that she might have difficulty with anxiety and with feelings of being isolated and not understood by others.

(TR. 168). He noted that Plaintiff “reports having symptoms of a problem with mood. The results of the MMPI-2 are valid and also suggest that Ms. Werle may be experiencing some depression and anxiety at this time.” (Id.). Dr. Flynn found that Plaintiff was a good candidate for surgery from a psychological standpoint. (Id.). However, he recommended that Plaintiff meet “with a therapist to discuss her mood and the life situations that may be contributing to symptoms of depression and anxiety.” (Id.). He also recommended psychiatric evaluation to determine whether medication may help with her anxiety and depression. (Id.). Dr. Flynn’s diagnosis was:

Axis I: 311 Depressive Disorder Not Otherwise Specified 300.00 Anxiety Disorder Not Otherwise Specified R/o Major Depressive Disorder, Recurrent, Moderate

Axis II: V71.09 None

Axis III: Obesity, Back and Hip Pain

Axis IV: Problems with Primary Support Group, Problems with Health

Axis V: Current = 75; Highest Past 12 Months = 75

(TR. 169).

On May 16, 2006, Plaintiff saw Psychiatrist Alfredo C. Ramirez, M.D. (TR. 159-162). Dr. Ramirez noted that Plaintiff was oriented, her thought process was not tangential, she did not appear delusional, her mood was anxious, her insight was “intact good”, her affect was depressed and her judgment was good. (TR. 160). His diagnosis was:

Axis I: 296.33 Major Depression Recurrent

Axis I: Dysthymia

Axis I: Anxiety NOS

Axis II: none

Axis III: obesity, GI upset with Codeine

Axis IV: marked with increased weight and family issues

Axis V: G[lobal] A[sssement of] F[unctioning ] current: 75 GAF in past 1 year: 75

(TR. 160; see also TR. 158). Dr. Ramirez prescribed Prozac. (TR. 158). He found no psychiatric reason to prevent gastric bypass surgery. (Id.).

In June 2005, Dr. Ramirez noted that Plaintiff was “doing much better with the Prozac.” (TR. 165). Dr. Ramirez ranked Plaintiffs major depression disorder as 7/10 in severity, her GAF at 70, and he continued her on Prozac. (Id.). He noted that her mood was anxious and depressed. (Id.). Her mental status and affect were normal. (Id.).

In July 2005, Dr. Ramirez noted “decreased effects of Prozac.” (TR. 165). He found Plaintiffs severity level remained at 7/10, her GAF remained at 70, and her mood was anxious and depressed. (Id.). He continued her on Prozac. (Id.). Dr. Ramirez’s records from September 2005 reflect no change. (TR. 163) In October 2005, Dr. Ramirez’s notes reflected no change in Plaintiffs severity level, GAF score or mood; however, he indicated that he had discussed mental imagery with Plaintiff “to deal with her aversion and fear of food .... ” and he prescribed Lora-zepam in addition to Prozac. (TR. 563) In January 2006, Dr. Ramirez noted Plaintiffs increased stress at home and he continued her on Prozac and Lorazepam. (TR. 562).

On February 6, 2006, Dr. Ramirez completed a Medical Source Statement Concerning the Nature and Severity of Plaintiffs Mental Impairment. (TR. 491-494). He indicated that Plaintiff was not significantly limited regarding understanding and memory, her ability to carry out short and simple instructions, and her ability to carry out detailed instructions. (TR. 491-492) She was mildly limited in her ability to: maintain attention and concentration for extended periods; be aware of normal hazards and to take appropriate precautions; and travel in unfamiliar places or use public transportation. (TR. 492 — 493) She was moderately limited in her ability to: perform activities within a schedule, maintain regular attendance and be punctual within customary tolerances; sustain an ordinary routine without special supervision; work in coordination with or proximity to others without being unduly distracted by them; make simple work-related decisions; complete a normal workday and workweek without interruptions from psychologically based symptoms; perform at a consistent pace without an unreasonable number and length of rest periods; interact appropriately with the general public; ask simple questions or request assistance; accept instructions and to respond appropriately to criticism from supervisors; get along with coworkers or peers without unduly distracting them or exhibiting behavioral extremes; maintain socially appropriate behavior and to adhere to basic standards of neatness and cleanliness; respond appropriately to changes in the work setting; and set realistic goals or to make plans independently of others. (Id.). He opined that the limitations lasted 12 continuous months or can be expected to last 12 continuous months. (TR. 493). He further stated that Plaintiffs

Major Depression Recurrent 296.33 as well as her Anxiety Disorder make it difficult for her to be in a regular work situation. Functionally she is affected by depression; feels guilty about thing [sic] without any rational reason. This same low self esteem keeps her from dealing with peers in the work place.

(TR. 494).

On February 18, 2006, Plaintiff reported that “she is very anxious ...” and had additional stressors at home. (TR. 561). Dr. Ramirez added Klonapin to Plaintiffs medications. (Id.). He also ranked her severity level at 7/10, her GAF at 50 and he indicated Plaintiff was anxious and depressed. (Id.). In March, 2006, he continued her on all medications and “went through mental imagery to work with her anxiety.” (TR. 560). Her severity level remained ranked at 7/10, her GAF at 50, and her mood continued to be anxious and depressed. (Id.). In April 2006, Plaintiff reported that “her anxiety and panic has not been a problem however she gets the fear and then it does not develop to a full blown panic attack ...” (TR. 559). Dr. Ramirez assessed Plaintiff with a 7/10 severity level, with a GAF at 50, and indicated that her mood was anxious. (Id.). He directed Plaintiff to alternate Prozac dosages. (Id.) In May 2006, Plaintiff reported stress at home and about her health. (TR. 558). She “had only one episode of anxiety and it did not go to a full loss of control!” (Id.) (exclamation mark in original). Dr. Ramirez found Plaintiffs mood to be anxious. (Id.). Her severity level was 7/10 and her GAF was 50. (Id.). In June 2006, he noted that Plaintiffs mood was “stable not depressed” and that Plaintiff “had only one episode of anxiety in parking lot when the car would not run.” (TR. 557). He ranked her severity level at 8/10, her GAF at 50, and added a prescription for Am-bien. (Id.). In July 2006, Dr. Ramirez noted Plaintiffs high anxiety with regard to pending health issues and that her mood was stable and not depressed. (TR. 555-556). He ranked her severity at 8/10, her GAF at 50, and indicated her mood was anxious. (Id.). He replaced Ambien with Lunesta. (TR. 556).

The record also reflects that from May 2004 through July 2006, Plaintiff saw therapist Carol Wechsler Blatter, CISW, DCSW, on a regular basis. Topics discussed during sessions included Plaintiffs pain from her hip, back and kidney stones; Plaintiffs obesity/weight issues; Plaintiffs low self esteem; Plaintiffs feelings of anxiety and stress; marital and parental issues/relationships; and other health issues.

At Plaintiffs 2004 initial psychological evaluation, therapist Blatter diagnosed “adjustment disorder w/mixed anxious and depressed mood (309.28)” with a GAF of 58. (TR. 222). In June 2004, they discussed the possibility of medication to decrease Plaintiffs anxiety and stress. (TR. 264).

In September 2004, therapist Blatter diagnosed adjustment disorder with mixed anxious and depressed mood. (TR. 229). Plaintiffs GAF score was 59. (IcL). Therapist Blatter also indicated that Plaintiffs insight and judgment were limited, she was depressed, experienced sleep disturbance, had anxiety and somatic complaints. (Id.). Treatment goals included increasing Plaintiffs self esteem and decreasing conflicts with Plaintiffs spouse and children. (Id.).

In January 2005, therapist Blatter’s diagnosis was “Depressive Disorder NOS (311)” and that Plaintiff had anger, anxiety, decreased energy, depression, sleep disturbance, and somatic complaints and limited insight. (TR. 221, 228). She stated that Plaintiff had improved during the last year of treatment. (TR. 228). Plaintiffs GAF score was 59 (TR. 221) or 60. (TR. 228). Treatment goals included decreasing depression, stress, and anxiety; improving marital communications; and improving health focusing on weight and pain management. (TR. 221, 228). In September 2005, therapist Blatter’s diagnosis remained depressive order not otherwise specified (311) and Plaintiffs GAF score was 62. (TR. 226). Plaintiff had improved but still suffered from anxiety, decreased energy, depression, sleep disturbance, and somatic complaints. (Id.). Additionally, Plaintiff experienced appetite disturbance. (Id.). Treatment goals included decreasing Plaintiffs depression and anxiety, developing her own interests, and improving her relationship with her husband. (Id.).

On September 28, 2005, therapist Blat-ter wrote to Alexander Villares, M.D., to express concern that Plaintiff had become undernourished since having gastric bypass surgery. (TR. 232). Since that surgery, Plaintiff had reported persistent vomiting, loss of appetite due to fear of eating and vomiting, large amounts of hair falling out, lack of energy, and mild depressed mood and anxiety related to these physical problems. (Id.).

In January 2006, therapist Blatter diagnosed Plaintiff with depressive disorder not otherwise specified (311) and generalized anxiety disorder (300.2). (TR. 462). Plaintiff had anxiety, appetite disturbance, depression, sleep disturbance, and somatic complaints. (Id.). Her GAF score was 64. (Id.). Treatment goals included increasing assertive behavior and self esteem, decreasing anxiety and depression, improving marital communication and finding interests and hobbies. (Id.). A July 2006 record from therapist Blatter indicated similar findings. (TR. 580).

2. Non-Examining State-Agency Physicians

a. Physical Impairments

In February 2005, F.A. Shallenberger Jr., M.D., noted that “[r]eveiw of [Plaintiffs] medical records indicates she has had recurrent Renal calculi with some hy-dronephrosis” and Plaintiffs past history of herniated disc and snapping hip syndrome. (TR. 457). Dr. Shallenberger pointed out that

Function Report from [Plaintiff] ..., lives with family, takes care of school age kids, cooks, household chores, husband in Military (gone a lot), drives, attends church and social groups, uses no assistive devices. 3rd party (friend) confirms [Plaintiff] is able to function without limitations.

(Id.). Dr. Shallenberger’s conclusion was that Plaintiff was not disabled for purposes of the Social Security Act. (Id.).

In June 2005, Robert Estes, M.D., completed a Physical Residual Functional Capacity Assessment concerning Plaintiff wherein he opined that Plaintiff could lift up to 50 pounds occasionally and up to 25 pounds frequently; she could stand and/or walk about 6 hours in an 8-hour work day; she could sit about 6 hours in an 8-hour work day with normal breaks; and she had no limitations with pushing and/or pulling. (TR. 267). To support this conclusion, Dr. Estes stated: “Obese claimant with recent weight of 277 pounds (height not recorded) with chronic low back pain, imaging evidence of some degenerative lumbosacral disease with herniated disc L5-S1. Normal strength, range of motion, reflexes and sensation. Claimant has renal calculi without sign of hydronephrosis.” (Id.). Dr. Estes further indicated no postural limitations except that Plaintiff should climb ladders, ropes or scaffolds only occasionally. (TR. 268). Dr. Estes also opined that Plaintiff should “avoid concentrated exposure” to vibration, and hazards such as machinery and heights. (TR. 270). Dr. Estes stated that Plaintiffs activities of daily living “are consistent with physical findings accepting that claimant’s chronic pain is credible. Functional loss is minimal, noting however severe obesity.” (TR. 273). Dr. Estes further stated that “[flunctional loss has not been demonstrated to persist for any consecutive twelve month period with normal strength, range of motion, gait in spite of imaging evidence of lumbar spine degenerative disease with herniated disc at L5-S1.” (TR. 460).

C. Vocational Expert Testimony

At the February 23, 2006 hearing, Vocational Expert (hereinafter irVE”) Kathleen McAlpine testified. VE McAlpine identified Plaintiffs past relevant work as a clerk at a rod and gun club as “light and semi-skilled ...” with a special vocational preparation (hereinafter “SVP”) of 3; as a waitress as light and semi-skilled with an SVP of 3; and as a kennel/veterinary technician, which the VE termed “[a]nimal health technician” as medium and skilled with an SVP of 6. (TR. 655-656).

The ALJ asked the VE a hypothetical question concerning an individual of Plaintiffs age, education and work history who: due to “bad back problems ...” is limited to lifting 10 pounds on a frequent basis, 20 pounds on an occasional basis; “has pain in various parts of her body, and-primarily in her back and her left leg, her abdomen” and in her hips; and has kidney stones. (TR. 657). The ALJ asked the VE to assume that such a person had a pain level

of a slight nature and would have a slight effect on her ability to do basic work activities, or that condition is or can be controlled by appropriate medication without significant adverse side effects. This hypothetical person also has some psychiatric problems in the form of depression and anxiety, both of which are of a slight nature and would have a slight effect on her ability to do basic work activities, or those conditions are or can be controlled by appropriate medication without significant adverse side effects. So, could hypothetical person number one, with slight or controlled pain, be able to do any of the past work that was done by the Claimant, Ms. Werle?

(Id.). VE McAlpine responded that such a person could perform Plaintiffs past work as a receptionist, which is sedentary and semi-skilled work with an SVP of 4. (TR. 657). Such person could also perform Plaintiffs past work as a waitress and, to the extent Plaintiffs past work required work as a cashier, the hypothetical person could also work as a cashier. (TR. 658-659). However, such person could not work as either a veterinary technician, or as a clerk in a gun club, because of the lifting and carrying requirements. (TR. 659).

If the same hypothetical person had “more [pain] .... of a moderate nature ... and would normally have a moderate effect on her ability to do basic work activities, or that condition is or can be controlled by appropriate medication without significant adverse side effects.” (TR. 659-660). Additionally, the person

also has some moderate level of psychiatric problems in the form of depression and anxiety, which ... are or can be controlled by appropriate medication without any significant adverse side effects. So could hypothetical person number two, with moderate-with controlled pain and psychiatric problems be able to do the work of the receptionist and the waitress, as done by Ms. Werle or as described in the Dictionary of Occupational Titles?

(TR. 660). According to VE McAlpine, such person could do the work of a receptionist and waitress as previously done by Plaintiff. (Id.).

The ALJ next posed a hypothetical question concerning a person who had all the same factors as before

except now the pain is severe and the psychiatric problems are ... severe. They are so severe that there is no amount of pain medication, nor is there any psychotropic medication that would help alleviate these problems. Or if they did, then the side effects of these medications would be so significantly adverse that they would markedly interfere with the ability to maintain pace and concentration.

(TR. 659-660). VE McAlpine testified that such person could not perform the work of a receptionist or a waitress. (Id.). Nor does work exist in the national economy which this person could perform. (TR. 661).

Finally, the ALJ asked the VE to assume the limitations set out in the first hypothetical except as modified by Dr. Ramirez’s identified limitations. (Id.). VE McAlpine testified that such person would be unable to perform Plaintiffs past work or other work in the national economy. (TR. 662).

Upon questioning by Plaintiffs counsel, VE McAlpine testified that, assuming the ALJ’s first hypothetical and adding the limitation of “less than occasional stooping”, the person would be unable to work as a waitress because “[s]he might have to stoop more than occasionally” but that person would be able to work as a receptionist. (TR. 663). An ability to stand and walk less than two hours during an eight hour work day in addition to restricted stooping and the limitations listed for the ALJ’s first hypothetical would not prevent the person from working as a receptionist. (Id.). If the person were to miss one day a week due to any combination of her symptoms, “[s]he could probably get the job, but she wouldn’t be able to maintain it, being absent one day a week.” (Id.).

D. Lay Statements

Plaintiff submitted a statement from her friend Gloria York. (TR. 103-110). Ms. York indicated that Plaintiffs condition limits Plaintiffs ability to garden and walk. (TR. 104). Plaintiff prepares meals, does laundry, cooks, cleans, drives and does yard work but is limited in doing house or yard work. (TR. 105-106). Back injuries limit Plaintiffs ability to lift, squat, bend, stand, walk, kneel, and stair climb. (TR. 108). When asked how Plaintiff handles stress, Ms. York responded that “[a]t times she will get overwhelmed.” (TR. 109).

E. The ALJ’s Findings

1. Claim Evaluation

SSA regulations require the ALJ to evaluate disability claims pursuant to a five-step sequential process. 20 CFR §§ 404.1520, 416.920; Baxter v. Sullivan, 923 F.2d 1391, 1395 (9th Cir.1991). The first step requires a determination of whether the claimant is engaged in substantial gainful activity. 20 CFR §§ 404.1520(b), 416.920(b). If so, then the claimant is not disabled under the Act and benefits are denied. Id. If the claimant is not engaged in substantial gainful activity, the ALJ then proceeds to step two which requires a determination of whether the claimant has a medically severe impairment or combination of impairments. 20 CFR §§ 404.1520(c), 416.920(c). In making a determination at step two, the ALJ uses medical evidence to consider whether the claimant’s impairment more than minimally limited or restricted his or her physical or mental ability to do basic work activities. Id. If the ALJ concludes that the impairment is not severe, the claim is denied. Id. If the ALJ makes a finding of severity, the ALJ proceeds to step three which requires a determination of whether the impairment meets or equals one of several listed impairments that the Commissioner acknowledges are so severe as to preclude substantial gainful activity. 20 CFR §§ 404.1520(d), 416.920(d); 20 CFR Pt. 404, Subpt. P, App. 1. If the claimant’s impairment meets or equals one of the listed impairments, then the claimant is presumed to be disabled and no further inquiry is necessary. If a decision cannot be made based on the claimant’s then current work activity or on medical facts alone because the claimant’s impairment does not meet or equal a listed impairment, then evaluation proceeds to the fourth step. The fourth step requires the ALJ to consider whether the claimant has sufficient residual functional capacity (“RFC”) to perform past work. 20 CFR §§ 404.1520(e), 416.920(e). If the ALJ concludes that the claimant has RFC to perform past work, then the claim is denied. Id. However, if the claimant cannot perform any past work due to a severe impairment, then the ALJ must move to the fifth step, which requires consideration of the claimant’s RFC to perform other substantial gainful work in the national economy in view of claimant’s age, education, and work experience. 20 CFR §§ 404.1520(f), 416.920(f). At step five, in determining whether the claimant retained the ability to perform other work, the ALJ may refer to Medical Vocational Guidelines (“grids”) promulgated by the SSA. Desrosiers v.