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Jenkins v. Colvin

United States District Court, D. Arizona

February 11, 2014

Susan Elizabeth Jenkins, Plaintiff,
v.
Carolyn W. Colvin, Acting Commissioner of Social Security, Defendant.

ORDER

BEMARDO P. VELASCO, Magistrate Judge.

Plaintiff, Susan Elizabeth Jenkins, filed this action for review of the final decision of the Commissioner of Social Security pursuant to 42 U.S.C. § 405(g). The United States Magistrate Judge presides over this case pursuant to 28 U.S.C. § 636 (c) and Fed.R.Civ.P. 73, having received the written consent of both parties.

I. PROCEDURAL HISTORY

Plaintiff filed applications for Disability Insurance Benefits ("DIB") and Supplemental Security Income (SSI) with a protective filing date of July 15, 2008 alleging an onset of disability beginning May 1, 2008 due to pain and numbness in her legs and pain in her back and hips with sitting; pain with lifting or carrying overhead; asthma; "feel[ing] nervous and crying all the time and [..] snapping really easily"; migraines with loss of eyesight, headaches, and dizziness. Transcript/Administrative Record ("Tr.") 108-110, 116-118, 127, 131. The application was denied initially and on reconsideration. Tr. 86-89, 91-93. A hearing before an Administrative Law Judge ("ALJ") was held on October 28, 2009. Tr. 46-69. The ALJ issued a decision on April 1, 2010, finding Plaintiff not disabled within the meaning of the Social Security Act. Tr. 31-42. This decision became the Commissioner's final decision when the Appeals Council denied review. Tr. 6-8.

Plaintiff then commenced this action for judicial review pursuant to 42 U.S.C. § 405(g). (Doc. 1) After considering the record before the Court and the parties' briefing of the issues, the Court reverses Defendant's decision and remands for further proceedings consistent with this Order.

II. THE RECORD ON APPEAL

A. Plaintiff's Background and Statements in the Record

Plaintiff was fifty-seven (57) years old at the time of the ALJ's decision with four or more years of college and past relevant work as a product technician in a missile systems business. Tr. 127, 131, 136.

Plaintiff testified at her hearing before the ALJ on February 26, 2010, that she left her job as a product technician because she has "a lot of problems with [her]... neck and... legs and back." Tr. 49. She has also had two ventral hernia surgeries performed within nine months, and still has problems with her stomach. Tr. 49. She stated that she has severe pain in her neck which goes all the way down into her arms, her arms go numb when she raises them above her head, has cramps in her legs and feet, and abdominal problems, including inflamed colitis, an esophagus repair, a ventral hernia, irritable bowel syndrome, chronic diarrhea controlled by medication, asthma, and depression. Tr. 52-56.

Plaintiff testified that she takes Tramadol and Valium for the pain in her back. Tr. 57-58. Her pain medications make her sleepy. Tr. 61. She takes Alupent, Albuterol and Zocor for asthma, and uses a nebulizer. Tr. 61-62. She has a CPAP machine for sleep apnea. Tr. 61-62. She takes Asacol for her colitis. Tr. 65.

In a typical day, Plaintiff wakes up, has coffee and reads the newspaper, sits outside to smoke, then her boyfriend drives her to appointments if she has them or else sits for a while, or does work around the house. Tr. 57. When she is working around the house she sits down for a while when she is hurting, and then gets back up and forces herself to do stuff. Tr. 57. She lies down if it doesn't stop hurting. Tr. 57. She gets migraines but does not take any medication for them. Tr. 57. She doesn't do a lot of walking, but she does do arts and crafts, like crocheting, for approximately half-an-hour. Tr. 58. She gets depressed every day. Tr. 66. When she gets migraines, she lies down and puts on a cold cloth. Tr. 66. She would work with her migraines, but would end up at the nurse's station every day. Tr. 67. While she worked at Raytheon, however, she was not at the nurse's station every day. Tr. 67-68.

The ALJ did not take testimony from a vocational expert ("VE").

B. Relevant Medical Evidence Before the ALJ[1]

1) Treating Sources

The medical record of evidence contains records from Plaintiff's primary care physician, Jorge O'Leary, M.D., for the time period from January 2006, to April, 2008. Tr. 199-319. Dr. O'Leary's treatment notes, though difficult to decipher, indicate Plaintiff followed up with him for treatment of hypertension, asthma, rhinitis, irritable bowel syndrome ("IBS"), GERD, back and leg pain, and follow up care following two ventral hernia repairs on February 22, 2007. Tr. 237-263. Dr. O'Leary's records also include short term work-related restrictions, and referrals to specialists and for diagnostic testing. Tr. 199-319.

In August, 2006, Dr. O'Leary completed a "Certification of Physician or Practitioner" claim, indicating that Plaintiff was "incapacitated" due to bronchial asthma, chronic diarrhea, chronic neck pain, and severe episodes of hypoglycemia, yet also indicating that she was able to perform work of any kind and that she was able to perform the essential functions of her position for her then employer (Raytheon). Tr. 204-205.

In November, 2006, Dr. O'Leary completed an insurance claim form, noting specific restrictions to avoid lifting over ten pounds, avoid prolonged standing, walking or sitting and avoid bending, stooping or leaning. Tr. 230. Her prognosis for returning to work on modified duty was "fair to good." Tr. 230.

In February, 2007, Dr. O'Leary inscribed on prescription forms that Plaintiff was restricted from heavy lifting, and should be sent home sick from February 12, 2007 to February 28, 2007. Tr. 211.

Plaintiff received surgical treatment for recurrent ventral hernias by Gary L. Henderson, M.D., on at least three occasions between March 2007 and February 2009 Tr. 328-329, 331-332, 345-346, 347-348, 400. In January 2008, Dr. Henderson noted that other than the treatment for recurrent ventral hernias, his review of systems resulted in normal findings Tr. 329. As of ...


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