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Curtis v. Colvin

United States District Court, D. Arizona

January 24, 2014

Curtis Curtis, Plaintiff,
v.
Carolyn W. Colvin, Acting Commissioner of Social Security, Defendant.

REPORT AND RECOMMENDATION

D. THOMAS FERRARO, District Judge.

Plaintiff Curtis Curtis brought this action pursuant to 42 U.S.C. § 405(g) and 1383(c)(3) seeking judicial review of a final decision by the Commissioner of Social Security (Commissioner). (Doc. 1, Compl.) Before the Court are Plaintiff's Opening Brief ("Pl.'s Br.") and Defendant's Opposition to Plaintiff's Opening Brief ("Def.'s Br."). (Doc. 29, 36). Plaintiff has not filed a reply. This matter has been referred to the Magistrate Judge for a Report and Recommendation. (Doc. 8, 38.) Based on the pleadings and the administrative record submitted to the Court, the Magistrate Judge recommends that the District Court, after its independent review, affirm the Commissioner's decision denying benefits.

PROCEDURAL HISTORY

Plaintiff applied for disability insurance benefits and supplemental security income pursuant to Titles II and XVI of the Social Security Act on February 12, 2007. (Administrative Record (AR) 109-11.) Plaintiff alleged disability since December 1, 2000. (AR 109.)[1] Plaintiff's application was denied initially and on reconsideration. (AR 68-75.) Plaintiff requested a hearing before an Administrative Law Judge (ALJ). (AR 65.) A hearing was held on January 20, 2010 at which Plaintiff appeared by telephone and testified. (AR 410-24.) On February 3, 2010, the ALJ issued an unfavorable decision. (AR 48-61.)

Plaintiff requested review which the Appeals Council granted on July 16, 2010. (AR 90, 92.) The Appeals Council remanded the matter to the ALJ with instructions regarding issues to be given further consideration. (AR 92-96.) The ALJ held another hearing on November 6, 2010 at which Plaintiff, represented by counsel, appeared by telephone due to his imprisonment. (AR 425-45.) The ALJ issued an unfavorable decision on December 15, 2010. (AR 9-23.) Plaintiff requested review of the ALJ's decision. (AR 407-09.) The Appeals Council denied Plaintiff's request for review, making the Commissioner's decision final for purposes of judicial review. (AR 5-8.)

FACTUAL HISTORY

Plaintiff was 28 years of age at the time of his alleged onset date and 38 years of age as of the date of the ALJ's December 15, 2010 decision. (AR 109, 428.) Plaintiff has a high school education and no past relevant work experience. (AR 21, 104-08, 112-15, 127-34.)

In 2001, Plaintiff was treated by Hermes Gerundo, M.D., of ValueOptions, Inc., (ValueOptions) for depressed mood and bipolar disorder and was prescribed medication. Plaintiff was noted as "clinically stable." (AR 301-17.) Plaintiff has a history of substance abuse. (AR 301.) A February 2001 record noted that Plaintiff was jailed for 180 days for assault and was placed on three years of probation. (AR 301-02.)

Plaintiff was incarcerated at the Arizona Department of Corrections (ADC) from September 2005 through January 2007. (AR 241-52, 263-84, 326, 416, 437.) X-rays on December 7, 2007 were normal regarding Plaintiff's lumbosacral spine but showed minor degenerative changes to his right knee. (AR 207.)

Between March 2007 and April 2009, Plaintiff was treated at ValueOptions and Magellan Health Services (Magellan) by providers that included Psychiatric Nurse Practitioner (NP) Brandy MacLaughlin. Plaintiff's diagnosis of bipolar disorder and polysubstance abuse was noted and he was prescribed medication. (AR 326-32, 214-39, 364-405.) In September 2007, Plaintiff reported serving ten days in jail for domestic violence and criminal damage. (AR 218-19.) Plaintiff was placed on a Behavioral Health Plan by his Magellan health care providers in November 2007. (AR 230-39, 374-405.) On October 13, 2008, Plaintiff reported that he had been charged with criminal violations and had been released from jail on September 20, 2008. (AR 366-67.) Plaintiff was incarcerated at ADC beginning in April 2009 and at the time of the November 2010 hearing. (AR 334-49, 351-62, 427.)

Plaintiff testified at the second hearing that he was unable to work because of his behavior, stating that he has a tendency to be violent to others for no reason. (AR 430-32.) Plaintiff said that he is depressed "all the time" and that he takes medication for his psychosis. (AR 431.) Plaintiff stated that he cannot stand or walk for long periods due to his knee impairment and that he has overall body pain. (AR 431.) Plaintiff testified that he hears voices but that when he takes his medication he can think about what he should do and without his medication he reacts "because [his] head is always racing." (AR 433-34.)

In the second relevant decision, the ALJ found that Plaintiff has the severe impairments of obesity, arthritis in the right knee, and affective disorder (bipolar) but that these impairments did not meet or medically equal the listings. (AR 15.) The ALJ found that the medical evidence did not support a finding of disability prior to Plaintiff's date last insured of December 31, 2003 and accordingly, Plaintiff was not eligible for Title II benefits. (AR 14, 18-19.) The ALJ considered Plaintiff's eligibility for Title XVI benefits as of January 2007. (AR 19.) The ALJ determined that Plaintiff has the residual functional capacity (RFC) to perform light work except that Plaintiff could understand, remember and carry out simple instructions without significant limitations and could understand and remember detailed instructions but Plaintiff might be moderately limited by impulsivity in carrying them out. (AR 17-18.) Plaintiff was moderately limited in working with others without being distracted by them; moderately limited in completing a workday and workweek without interruptions by psychologically based symptoms; and moderately limited in interacting with the general public. (AR 18.) Plaintiff had no significant limitations in the "adaptation realm." (AR 18.) The ALJ found that jobs in the national and Arizona economies that Plaintiff could perform, based on the testimony of the Vocational Expert (VE), included janitor/cleaner, car vehicle washer, and assembler performed at the sedentary level. (AR 22.) The ALJ concluded that Plaintiff was not under a disability from December 1, 2000 through the date of decision. (AR 22, )

STANDARD OF REVIEW

The Commissioner employs a five-step sequential process to evaluate SSI and DIB claims. 20 C.F.R. §§ 404.920, 416.1520; see also Heckler v. Campbell, 461 U.S. 458, 460-62, 103 S.Ct. 1952, 76 L.Ed.2d 66 (1983). To establish disability the claimant bears the burden of showing (1) that he is not working; (2) that he has a severe physical or mental impairment; (3) that the impairment meets or equals the requirements of a listed impairment; and (4) that his RFC precludes him from his past relevant work. 20 C.F.R. §§ 404.920(a)(4), 416.1520(a)(4). At Step Five, the burden shifts to the Commissioner to show that the claimant has the RFC to perform other work that exists in substantial numbers in the national economy. Hoopai v. Astrue, 499 F.3d 1071, 1074 (9th Cir. 2007). If the Commissioner conclusively finds the claimant "disabled" or "not disabled" at any point in the five-step process, he does not proceed to the next step. 20 C.F.R. §§ 404.920(a)(4), 416.1520(a)(4). The Step Five determination is made on the basis of four factors: the ...


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