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Tate v. Colvin

United States District Court, D. Arizona

March 31, 2014

Donald J. Tate, Plaintiff,
v.
Carolyn W. Colvin, Acting Commissioner of Social Security, Defendant.

ORDER

BRUCE G. MACDONALD, Magistrate Judge.

Currently pending before the Court is Plaintiff's Opening Brief (Doc. 31). Defendant filed her response (Doc. 37), and no reply was filed. Also pending is Plaintiff's Motion for Substitution of Party (Plaintiff) filed with his Opening Brief (Doc. 32). 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). The United States Magistrate Judge has received the written consent of both parties, and presides over this case pursuant to 28 U.S.C. § 636(c) and Rule 73, Federal Rules of Civil Procedure.

I. BACKGROUND

A. Procedural History

On September 9, 2009, Plaintiff filed an application for Social Security Disability Insurance Benefits ("DIB") alleging disability as of September 30, 2008 due to failed back syndrome with history of back fusion with chronic back pain; lumbar degenerative disc disease; hypertension; trochanteric bursitis; gastroesophageal reflux disease; insomnia; neuropathic pain; sedative dependency; benzodiazepine dependence; opiate dependence; cannabis dependence; bipolar disorder; panic disorder; anxiety disorder; manic depressive disorder; and depression.[1] See Administrative Record ("AR") at 11, 13-14, 97, 100, 112, 116, 151, 236, 240, 328. The Social Security Administration ("SSA") denied this application on February 10, 2010. Id. at 101. On March 15, 2010, Plaintiff filed a request for reconsideration, and on April 14, 2010, SSA denied Plaintiff's request. Id. at 109-16. On June 15, 2010, Plaintiff filed his request for hearing. Id. at 117-18. On April 21, 2011, a hearing was held before Administrative Law Judge ("ALJ") Tammy Whitaker. Id. at 40. The ALJ issued an unfavorable decision on July 28, 2011. AR at 8-25. Plaintiff requested review of the ALJ's decision by the Appeals Council, and on August 29, 2012, review was denied. Id. at 1-7. On October 26, 2012, Plaintiff filed this cause of action. Compl. (Doc. 1).

B. Factual History

Plaintiff was thirty-three (33) years old at the time of the administrative hearing, and thirty (30) at the time of the alleged onset of his disability. AR at 40, 44, 191, 216, 236, 284, 295, 328. Plaintiff possesses a Bachelor's degree in secondary education. Id. at 44, 202. Prior to his alleged disability, Plaintiff worked as a secondary school teacher.[2] Id. at 80, 161-71, 196, 205-15, 241. More recently, Plaintiff has worked for short periods of time in fast food, doing landscaping design and as a landscaper, and running a daycare program. Id. at 45-50, 172-90.

At the administrative hearing, Plaintiff testified that he currently lives with his parents. Id. at 50. Plaintiff further testified that he has one child, who lives with her mother. AR at 51. Plaintiff testified that he drives an automobile perhaps once or twice a week, but generally his mother or brother drive him. Id. at 44.

Plaintiff testified that while receiving unemployment benefits in September 2008, he continuously looked for work. Id. at 48-49. Plaintiff further testified that he "signed up with Goodwill to do some vocational rehab to try and help [find a job]." Id. at 48. Plaintiff also testified that he spent approximately thirty (30) to forty (40) hours per week looking for work, either on the internet, in the newspapers, or "go[ing] out and hit[ting] the pavement." Id. at 48-49.

Plaintiff described his typical day upon waking as "do[ing] physical therapy where it involves zero [sic] gravity table so that I can stretch my spine... for about 25 minutes to 45 minutes... and I walk and I have a medicine ball where I use it to stretch out and that's usually about another 30 minutes exercise." AR at 51-52. Plaintiff later stated that his zero gravity table was broken, and that he would like to get another, because "they worked out great." Id. at 64. Plaintiff further testified that he then tries "to strengthen [his] back and build a type of repetitive motion to where [he] can rebuild the strength in [his] back." Id. at 52. Plaintiff testified that he spends approximately three (3) hours per day exercising. Id. In the afternoon, Plaintiff testified that some days he has to "lay down because the pain's so bad, then some days... [he will] try and walk, some days [he will] take the dog for a walk." Id. Plaintiff further testified that normally he is "unable to walk more than you know 20 minutes at a time or 15 minutes at a time." AR at 64. Plaintiff also testified that during the afternoon he will sit "elevating [his] feet" and read. Id. at 53. In the evenings, Plaintiff testified that he will sit or lay down "in and out of a daze[.]" Id. at 54. Plaintiff further estimated that he spends "four and a half to six hours" on a computer each night. Id. at 54-55. During this time, Plaintiff testified that he will look for work, look for new back exercises and other new therapies for his back, and download books to his Kindle. Id. at 55, 64. Plaintiff estimated that he gets approximately four (4) to six (6) hours of sleep per night. AR at 54.

Plaintiff testified that he talks on the telephone "maybe three or four hours a week if that[, ]" and "a lot of times it's just talking to my mom." Id. at 55. Plaintiff further testified that he does not watch television. Id. Plaintiff testified that he needs help with putting on his socks and shoes, and sometimes with "washing the lower part of [his] back and [his] legs and [his] feet because [he] can't reach those areas or [he is] hurting in those areas[.]" Id. at 56; see also AR at 262. Plaintiff's wife also documented that he needs assistance with his socks and shoes. AR at 250. Plaintiff further testified that he has added bars next to the toilet in the bathroom to help him stand up. Id. at 56. Plaintiff's wife confirmed that he "occasionally needs help getting up" from the toilet. Id. at 250. Plaintiff also testified that he has not cooked in "probably eight months[.]" Id. at 57; see also AR at 263. Plaintiff's wife noted that he does not do much cooking anymore. AR at 251.

Plaintiff testified that he has "just started with this healthy living changers group[.]" Id. at 57. Plaintiff further testified that he has "[m]aybe three" people that he regards as friends. Id. at 58. Aside from his spouse, Jennifer, he sees his other friends "[m]aybe once every three weeks, four weeks[.]" Id. Plaintiff testified that when he sees his friends "[n]ine times out of ten I may watch a football game, this, that or another or I'll just try and avoid them." Id. Plaintiff stated that "I feel like because of the medication I'm on that that's the only reason they want to interact with me... I feel like they just use me." AR at 58.

Plaintiff testified that prior to September 2008 he enjoyed golfing. Id. at 59. Plaintiff further testified that he has ridden a bicycle perhaps once or twice in 2011, as of the time of the hearing. Id. at 60. Plaintiff testified that in 2010 he rode his bicycle approximately three (3) times per month, depending upon how much pain he was in. Id. at 61. Plaintiff further testified that he walks "as a form of exercise or activity[.]" Id. Plaintiff testified that he tries to walk to the mailbox. Id. at 62.

Plaintiff testified that he traveled to Indianapolis from Arizona for the hearing. AR at 63. Plaintiff further testified that "it hurt quite a bit to sit... for six hours but the flight attendants were very accommodating in the sense that they let me get up and move around." Id. Plaintiff further testified that he is a "people person" who gets along well with others. Id. at 64.

Plaintiff testified that he has pain in his lower back, legs and side of his rib cage. Id. at 65. Plaintiff further testified that the pain is constant. Id. Plaintiff testified that "[m]oving around, [and] doing simple functioning chores around the house" increases his pain. AR at 66. Plaintiff testified that he sweeps the floor and does his own laundry. Id. at 66. Plaintiff further testified that he tries to walk to make his physical pain feel better. Id. Plaintiff testified that he takes pain medication, and the morning of the hearing took 30 milligrams of morphine, 20 milligrams of Percocet, 500 milligrams of Naproxen, Lisinopril for his blood pressure, 30 milligrams of Valium, and 10 milligrams of diazepam. Id. at 66-68. Plaintiff also testified that he takes Zantac. Id. at 68. Plaintiff testified that he had been on other medications, but they were discontinued because they affected his ability to function. AR at 69. Plaintiff further testified that he does not sleep during the day, and he does not experience fatigue as severely as when he was taking the previous medications. Id. Plaintiff testified that he did not sleep very well the previous night due to the quality of the mattress, and that he is tired due to travel. Id. at 69-70. Plaintiff further testified that his pain medication eliminates his pain for approximately three (3) to five (5) hours; however, it starts to increase. Id. at 70-71. When the pain returns it is at between six (6) and eight (8) on a scale of one to ten, with ten being the most severe. Id. at 72.

Plaintiff testified that he can sit for five (5) to ten (10) minutes at one time, walk for five (5) to ten (10) minutes, and stand for maybe fifteen (15) to twenty (20) minutes. AR at 72. Plaintiff further testified that he can not lift much at all, and "no more than 20 pounds." Id. Plaintiff testified that he is right-hand dominant, and does not have any problems with either his right or left arm and shoulder. Id. at 73. Plaintiff testified that he has not "taken any medications for mental impairments since 2008[.]" Id. Plaintiff testified that this is a result of his not being insured. Id. Plaintiff also stated that the three medicines he stopped taking because of the side effects were obtained through the Arizona Health Care Cost Containment System ("AHCCCS"), his testimony seems to indicate that these medicines were for mental health issues. AR at 73-74, 76-77. Plaintiff testified that to the best of his recollection he last used marijuana in January 2008. Id. at 74. Plaintiff further testified that he last used cocaine in January 2009. Id. at 75.

Plaintiff testified that a doctor prescribed the cane that he was using. Id. at 77-78. Plaintiff further testified that he had originally been prescribed a walker, and that he had eventually stopped using it.[3] Id. at 78. Then, in April 2009, Plaintiff started using the cane "all the time." AR at 78. Plaintiff testified that he uses it "[b]ecause my left leg gives out on men and when it gives out on me... I lose the ability to function in my left leg." Id. at 78-79. Plaintiff further testified that he has fallen as a result. Id. at 79. Plaintiff also testified that his left foot is "floppy" a lot of times, which causes him to stumble and fall. Id. at 79-80.

Ms. Constance Brown, a Certified Rehabilitation Counselor, also testified at the administrative hearing. Id. at 80. Ms. Brown testified that she classified Plaintiff's previous employment as a secondary school teacher as light skilled work with a specific vocational preparation ("SVP") of seven (7). AR at 80. Ms. Brown further testified that this classification was based on how Plaintiff appeared to perform the job, and the Dictionary of Occupational Titles ("DOT") number was 091.227-010. Id. Ms. Brown testified that prior to being a teacher, Plaintiff worked as a substitute teacher. Id. at 80. Because he had not been trained as a teacher at that time, Ms. Brown classified the position as a teacher aide I. Id. Ms. Brown further testified that the DOT number is 099.227-042, and it is light, skilled work, with an SVP of 6. Id. at 81. Ms. Brown further testified regarding the classification of Plaintiff's work as a case manager for a state agency, stating the DOT number is 195.107-018. AR at 81. Ms. Brown testified that this is sedentary work, skilled with an SVP of 7, which appeared to be how Plaintiff performed the job. Id. Ms. Brown testified that Plaintiff also worked as a case manager for a non-profit agency, which she classifed as DOT number 195.107-018, sedentary, skilled work with an SVP of 7, which appeared to be how the job was performed. Id. at 81. Ms. Brown further testified that Plaintiff's work as a supervisor for a daycare program, would be listed as DOT number 168.167-010, light skilled work with an SVP of 8. Id. Ms. Brown testified that Plaintiff's work as a landscaper and landscape designer was categorized as DOT number 408.161-010, heavy, skilled work with an SVP of 7. Id. 81-82. Ms. Brown also classified Plaintiff's work as a landscape laborer, DOT number 408.687-014, heavy, unskilled work with an SVP of 2. AR at 82.

The ALJ's asked the following hypothetical

[I]f there was a younger person with a high school and above education and they had past relevant work that you described for this particular individual but not the landscaper job. And that person had a residual functional capacity such that they could perform work at the sedentary exertion level. They would however never be able to operate foot controls, they could never climb ladders, ropes, scaffolds or stairs. They could occasionally climb ramps, they could do occasional balancing, occasional stooping but never repetitively below the waist. The person could do occasional crouching, never any kneeling or crawling, the person can never do overhead reaching, environmentally the person would need to avoid all exposure to unprotected heights, dangerous machinery or slippery or uneven walking surfaces. The person would also need to never perform driving of automotive equipment commercially. The person also would need work limited to simple, routine and repetitive tasks, the person would need work that would allow them to be off task 10 percent of the day and work where they would have no interaction with the public. And could that person in your opinion perform any of this past work as you've described it for this claimant?

Id. at 82-83. Ms. Brown opined that no, such an individual could not perform Claimant's past relevant work. Id. at 83. Ms. Brown further opined that there was other work in the national economy that such an individual could perform. Id. Such positions would be sedentary and unskilled. Id. Ms. Brown testified that categories such as "general office clerks, the DOT, a sample DOT number which is 209.587-010, ... [and] bookkeeping and audit clerks, a sample DOT number of which is 219.587-010." AR at 83. Ms. Brown further testified that semiconductor assembly jobs, DOT number 726.687-030 would also be available to such an individual. Id. at 84.

The ALJ then added to her hypothetical that "the person also needed the ability to sit or stand alternatively but could only sit, stand or walk each 30 minutes at one time and they would need to utilize an assistive device such as a cane when ambulating. Id. Ms. Brown testified that such a person could not do the assembly job, but could perform the general office clerk and audit clerk jobs. Id. Ms. Brown further testified that there were no other jobs available to such an individual. Id. The ALJ further added to her hypothetical that the individual could only have occasional interaction with coworkers. AR at 84. Ms. Brown testified that such a person could still perform the general office clerk and audit clerk jobs. Id. at 85.

The ALJ defined off task to mean "that the person's in the work environment either at their duty station or away from their duty station no performing their assigned duties for any reason... [and] that from a vocational perspective that it's not so much important why you're off task but rather the amount of time you're off task[.]" Id. at 85-86. Ms. Brown concurred with this definition. Id. The ALJ further modified her hypothetical to change the ten (10) percent off task time to fifteen (15) percent of the day in addition to regularly scheduled breaks. Id. at 86. Ms. Brown testified that this change would eliminate the semiconductor assembly, and "[i]t would be at the outside margin for the clerical jobs." AR at 86. Ms. Brown further explained that an individual could not consistently be off task fifteen (15) percent of the day and still perform those jobs. Id. at 86-87. The ALJ asked Ms. Brown whether her opinions were consistent with the DOT, and Ms. Brown confirmed, stating "[i]n so far as the Dictionary covers my testimony, Judge, they are consistent. Id. at 85.

The ALJ noted that "[b]ased upon my observations of the claimant's demeanor evidence today during which I will note among other things while Ms. Brown was testifying the claimant's eyes were closed often and also during his testimony." Id. at 87. Plaintiff consistently testified that he was not suffering from fatigue due to his medications or otherwise impaired; however, he apparently fell asleep during his testimony. Id. at 62-63, 69-70, 75, 77, 87.

On October 23, 2004, Plaintiff was seen in the emergency room of Community Hospitals Indianapolis for "left upper quadrant abdominal pain." AR at 643. Plaintiff complained of multiple vomiting and diarrhea episodes that morning. Id. Plaintiff was given Morphine, Phenergan, and Reglan intravenously. Id. at 644. This resulted in complete relief of his pain. Id. Plaintiff was given prescriptions for Phenergan and Lortab on discharge. Id. at 645-46. On December 13, 2004, Plaintiff was seen at Midtown Community Health Center for bipolar mania and needing medication. AR at 799-800. Plaintiff had been fired from his previous psychiatrist for "not paying bill and arguing with MD about MD not seeing him in a timely manner." Id. at 799. Plaintiff denied past suicide attempts and alcohol or drug use. Id. Plaintiff was scheduled to go to court the following day for a violation of a restraining order filed by his wife. Id. Plaintiff was given Seroquel 100 mg. Id. On December 29, 2004, Plaintiff returned to Midtown Community Mental Health Center for a follow-up. AR at 801. Plaintiff reported ...


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