United States District Court, D. Arizona
REPORT AND RECOMMENDATION
BERNARDO P. VELASCO, Magistrate Judge.
Plaintiff, Dale William Ray Farmer, filed this action for review of the final decision of the Commissioner of Social Security pursuant to 42 U.S.C. § 405(g). Plaintiff presents three issues on appeal: whether the Administrative Law Judge ("ALJ") erred by failing to give controlling evidentiary weight to the treating and examining providers; (2) whether the ALJ properly evaluated and weighed the opinion of the March 13, 2009 consultative examiner; and (3) whether the ALJ found clear and convincing reasons for an adverse credibility finding. (Doc. 18.) Pending before the court is an Opening Brief filed by Plaintiff (Doc. 18), the Commissioner's Opposition (Doc. 20), and Plaintiff's Reply Brief (Doc. 21). Pursuant to the Rules of Practice of this Court, this matter was referred to Magistrate Judge Bernardo P. Velasco for a Report and Recommendation. (Doc. 5.) 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 decision of the ALJ.
I. Procedural History
Plaintiff filed an application for Supplemental Security Income ("SSI") on October 1, 2008, with a protective filing date of September 25, 2008, alleging an onset of disability beginning July 1, 2007 due to a seizure disorder. Transcript/Administrative Record ("Tr.") 83, 158-67, 220. The application was denied initially and on reconsideration. Tr. 78-79. A hearing before an ALJ was held on October 20, 2010. Tr. 35-54. The ALJ issued a decision on November 10, 2010 finding Plaintiff not disabled within the meaning of the Social Security Act. Tr. 83-88. The Appeals Council granted a request for review and vacated the hearing decision and remanded the case to the ALJ for additional evidence and further evaluation. Tr. 91-93.
On remand, a second hearing was held before the ALJ on February 7, 2012. Tr. 55-77. The ALJ issued a decision on March 9, 2012 finding Plaintiff not disabled. Tr. 13-26. This decision became the Commissioner's final decision when the Appeals Council denied review. Tr. 1-3. Plaintiff then commenced this action for judicial review pursuant to 42 U.S.C. § 405(g). (Doc. 1)
II. The Record on Appeal
a. Plaintiff's Background and Statements in the Record
Plaintiff, forty (40) years of age at the date of the ALJ's March 2012 decision, completed the eleventh grade in school with past relevant work in construction and maintenance. Tr. 59-60, 63, 212.
Plaintiff testified at a hearing before the ALJ on October 20, 2010 that he had worked most recently growing and harvesting tomatoes in a greenhouse from August 2009 until January or February, 2010. Tr. 41-42. Plaintiff testified he was laid off in December, and again in February because there was no more work. Tr. 42.
Plaintiff first started having seizures when he was eleven years old. Tr. 44. He testified that he felt he could no longer work because he was having seizures two to three times a week, including grand mal seizures with strokes. Tr. 44. Plaintiff acknowledged that he went through a period, a year and three months before December 2008, when he did not have any seizures. Tr. 44. Plaintiff testified that the seizures were becoming more frequent, causing Plaintiff to lose function of the right side of his body, and taking him a day to a week afterwards to fully recover. Tr. 48-49.
Plaintiff also testified that in addition to the seizures, he had one leg that was half an inch shorter than the other, and problems with his knee from a torn meniscus. Tr. 44-45. Plaintiff wears lifts for the leg length discrepancy and gets shots in his knee for the knee problem. Tr. 44-45. Plaintiff also has migraine headaches once or twice a month, sometimes as frequently as two times a day, which cause nausea, vomiting, and blurred vision. Tr. 47-48.
On a daily basis, Plaintiff cares for his infant daughter, feeds his dogs and picks up his yard. Tr. 45. He doesn't watch television, but reads newspapers, goes grocery shopping, helps with laundry, and cooks all the time. Tr. 45-46. Plaintiff does not drive. Tr. 50.
Plaintiff takes Depakote and Topamax, and has side effects from his medication consisting of drowsiness, sleepiness and numbness. Tr. 50. Plaintiff has monthly checks on his Depakote levels, and reports his seizures to his doctor. Tr. 51-52.
Plaintiff testified at the second hearing, on February 7, 2012 that he was laid off in February 2010 from the greenhouse because of his seizures. Tr. 63. When Plaintiff asked his doctor what to do about it, his doctor told him no more work. Tr. 64.
Plaintiff testified at the second hearing that his seizures were occurring more frequently, up to three to four times a week, and lasting for up to 25 to 45 minutes. Tr. 65-66. After a seizure he feels "sick", his muscles are tired, he is weak, and can't really walk. Tr. 67. Additionally, he loses memory. Id. Plaintiff testified that he also has headaches two to three times a week. Id.
A vocational expert ("VE") testified that Plaintiff's past relevant work was unskilled. Tr. 73. The VE testified that if Plaintiff could perform at all exertional levels, with the avoidance of hazards, dangerous machinery, and heights, and was further limited to simple, unskilled work, he could work as a janitorial cleaner, classified as light and unskilled work, and as a dishwasher, classified as medium, unskilled work. Tr. 72-73.
The VE testified that the tolerable absenteeism rate for the simple, unskilled work described by the VE would typically be 10 to 12 days a year. Tr. 74. Absences of two to three days a month would result in termination. Id. The VE further testified that there would be no work if an individual with the same age and education as Plaintiff had moderate difficulties understanding, remembering and carrying out short, simple instructions, and interacting appropriately with the public, co-workers, or supervisors; marked difficulties understanding and remembering detailed instructions, responding appropriately to work pressures in the usual work setting, and difficulties staying on task, due to malaise and who was "off task" for two hours every day and had two to three days of absenteeism. Tr. 74-75.
The VE further testified that there would be no work if an individual with the same age and education as Plaintiff had moderate difficulties: understanding and remembering simple or detailed instructions; carrying out detailed instructions; with attention and concentration for extended periods; completing a work day without symptoms or the need for rest; interacting with the general public; dealing with instruction or criticism from a supervisor; getting along with co-workers; and maintaining socially appropriate behavior. Tr. 75-76.
b. Relevant Medical Evidence Before the ALJ
i. Treating Sources
Plaintiff was seen in 2004 and from 2007 to 2009 at Hidalgo Medical Services in Silver City, New Mexico. Tr. 275-80. In October 2004 Plaintiff reported to his treating physician that he had been prescribed Depakote for seizures, but had stopped taking the medication one and a half months prior to the appointment. Tr. 280. Plaintiff reported no seizures since discontinuation of Depakote (valproic acid), but did report feeling strange and having one fainting spell. Id. Plaintiff was prescribed Depakote and returned in November 2004 for a follow up visit and to check his Depakote levels. Tr. 280-81. Plaintiff reported having some black-out incidents, but attributed these to his Depakote prescription running out. Tr. 279. After restarting on Depakote, he had no seizures or black-outs. Id. In December 2004, Plaintiff reported being seizure free while taking Depakote. Tr. 278.
In May 2007, Plaintiff reported to that his last seizure was 11 months previous. Tr. 277. Plantiff's Depakote prescription was refilled and he was referred to James McCabe, M.D., to continue care and to order an EEG. Id.
In June 2007 Plaintiff reported to Dr. McCabe that his last seizure was in March 2007, and that he occasionally takes extra Depakote to prevent seizures. Tr. 275. Plaintiff reported episodes of confusion in the week prior to the visit. Id. Dr. McCabe prescribed Depakote and referred plaintiff for an EEG. Tr. 276.
Between July 2007 and November 2008, records from Hidalgo Medical Services indicate that Plaintiff did not show for scheduled office visits in July 2007, and canceled one visit and did not show for another scheduled office visit in June 2008. Tr. 309. There are no records of any other visits to Hidalgo Medical Services during this time.
Records from Carlsbad Medical Center indicate that he was seen in October 2007 in the emergency department for treatment of possible seizure activity. Tr. 289. Plaintiff reported missing four days of his prescribed seizure medication. Tr. 291. Plaintiff reported having only one seizure in the past year and none for the past two months. Tr. 290-91. Plaintiff was discharged from the emergency room the same day, stable and walking, with instructions to restart his Depakote. Tr. 291-92.
In December 2008 Plaintiff reported to Alison Gomez, M.D., that he had a "breakthrough seizure" in September 2007. Tr. 310. He also reported not taking all of his medication on some days, but taking extra doses when he feels a seizure is coming on. Id. Dr. Gomez changed his Depakote prescription from a dose of 250 milligrams four times daily to a dose of Depakene ER 1000 milligrams once daily to improve compliance. Tr. 310. Plaintiff's Depakote levels were tested and found to be below therapeutic range. Tr. 314. Additionally, Dr. Gomez noted that Plaintiff had not had the EEG done. Tr. 310. Plaintiff did not show for a January 2009 follow up appointment. Tr. 309.
In March 2009 Plaintiff was seen at Gila Regional Medical Center emergency room, and though the record of the visit is incomplete, Plaintiff was instructed to follow up with his physician and take his medications as directed, and to return to the emergency room if his symptoms worsened. Tr. 332.
In April 2009 Plaintiff received emergency treatment after reportedly having a seizure at work. Tr. 452.
In May 2009, Plaintiff was seen by Jeffrey Bushman, D.O., to reestablish care. Tr. 364. Plaintiff reported to Dr. Bushman that he had a "big seizure a week ago." Id. Plaintiff reported he was currently taking Depakote 250 milligrams three times a day, and it was "doing okay for him." Id.
In July 2009, Plaintiff again received emergency treatment for a seizure, but was discharged as ...