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Ortiz v. Colvin

United States District Court, D. Arizona

July 24, 2014

Guadalupe Ramon Ortiz, Plaintiff,
Carolyn W. Colvin, Acting Commissioner of Social Security, Defendant.


BERNARDO P. VELASCO, Magistrate Judge.

Plaintiff, Guadalupe Ray Ortiz, 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: (1) whether the Administrative Law Judge ("ALJ") erred by giving "no weight" to the examining and treating mental health practitioners' opinions; (2) whether the ALJ's determination that Plaintiff's testimony was not credible was based on substantial evidence; and (3) whether Plaintiff is entitled to a finding of disability if his mental and nonexertional impairments are properly included in the residual functional capacity determination and hypothetical posed to the vocational expert ("VE"). (Doc. 18.) Pending before the court is an Opening Brief filed by Plaintiff (Doc. 18), and the Commissioner's Opposition (Doc. 25). Plaintiff did not file a reply brief.

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.

The Defendant's decision denying benefits is reversed and remanded for further proceedings consistent with this order.

I. Procedural History

Plaintiff filed an application for Disability Insurance Benefits ("DIB") in February 2008, alleging an onset of disability beginning December 22, 2002[1], due to morbid obesity, chronic pain, diabetes, high blood pressure, knee injuries, shoulder injury, back pain and sleep apnea. Transcript/Administrative Record ("Tr.") 204-06, 231, 235. The application was denied initially and on reconsideration. Tr. 87-88, 108-11, 113-15. Following an administrative hearing held on September 29, 2009, the ALJ issued a decision finding Plaintiff not disabled within the meaning of the Social Security Act. Tr. 29-68, 92-99. 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. 105-107.

On remand, a second administrative hearing was held before the ALJ on August 9, 2011. Tr. 43-68. The ALJ issued a decision on October 26, 2011, finding Plaintiff not disabled. Tr. 22-31. 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 was age 53 on his December 22, 2002 alleged onset date, and age 60 on December 31, 2009, Plaintiff's date last insured. Tr. 204, 211. Plaintiff graduated from college with a Bachelor's degree in business management and worked for a telephone company for 27 years as a regulatory director. Tr. 72, 236, 240, 689.

Plaintiff testified at a hearing before the ALJ on September 9, 2009 that he was laid off from his employment with the phone company in December 2002. Tr. 73-74. Prior to that, while he was working, Plaintiff started having problems with pain and with sleep apnea. Tr. 74-75. When Plaintiff stopped taking Advil due to kidney problems, it became more difficult for Plaintiff to do a lot of the things he used to do. Id. Plaintiff hoped to get a career in real estate, but was unable to complete real estate school because he "just couldn't follow up." Tr. 74, 76.

Plaintiff began taking Lyrica for pain after his doctor diagnosed him with fibromyalgia in the year before the hearing. Tr. 75-76. Plaintiff has a lot of back pain, can't sit for long periods of time and his back goes out. Tr. 76. Plaintiff also has a lot of pain with his knees and shoulders, and has had surgery on both. Id. Plaintiff had good results from two separate knee surgeries, but has to be careful and can't get on his knees anymore. Tr. 77. After the surgeries on both shoulders, he still has a little pain and has to be careful with what he does. Tr. 82.

In addition to the pain and sleep apnea, Plaintiff has depression and sometimes spends days in bed. Tr. 76. Plaintiff testified initially that his "mind is fine" but later testified that his pain takes away a lot of his concentration Tr. 81-82.

Plaintiff doesn't do much as much at home as he wants to, and if he does a project, "maybe within 45 minutes that's it for the rest of the day." Tr. 78. He can barely get home after going shopping for groceries, and gets tired very easily. Id. Plaintiff testified he has difficulty getting up in the morning and getting dressed. Tr. 80-81. Sitting for long periods of time hurts his back, and typing would hurt his fingers. Tr. 81. Plaintiff testified that he counted up to 90 visits in the last year for doctor's appointments. Tr. 83.

Plaintiff testified at the second hearing, on August 9, 2011 that his problems with sleep apnea started before he was laid off and that the problems affected his work performance. Tr. 60. Plaintiff tried using a CPAP (Continuous Positive Airway Pressure) machine for sleep apnea "at least eight times" but couldn't sleep with it. Tr. 61-62. Plaintiff tried lap band surgery for his obesity, but it didn't work as he had a horrible feeling in his throat after eating. Tr. 66.

A vocational expert ("VE") testified that Plaintiff's past relevant work was highly skilled, with a specific vocational preparation ("SVP") score of 8. Tr. 73. The VE testified that Plaintiff's skills would be considered transferable, but doubted it would be a very easy lateral transfer. Tr. 58.

The VE testified that Plaintiff would not be able to perform his prior relevant work as the VE had outlined in the Dictionary of Occupational Titles ("DOT") when Plaintiff's attorney posed the following hypothetical: marked limitations in his ability to perform activities within schedule, maintain regular attendance, complete a normal work day and work week without interruption from psychologically-based symptoms, and to perform with a consistent pace without unreasonable number and length of rest periods; and moderate limitations in his ability to maintain attention and concentration for extended periods, ask simple questions or request assistance, and accept instruction and respond appropriately to criticism from supervisors. Tr. 67-68.

b. Relevant Medical Evidence Before the ALJ[2]

i. Treating Sources

Plaintiff was treated from 2005 to 2008 at West Horizons Medical Center, Tucson, Arizona, by Surekha Bandlamuri, M.D. Dr. Bandlamuri's treatment notes reflect Plaintiff's history and reports of depression, and the prescribed treatment of antidepressants, fluoxetine (Prozac), and bupropion (Wellbutrin). Tr. 433-42. Dr. Bandlamuri completed two physicals of Plaintiff, one in October 2005, and another in November 2007, in which she noted in a check box form that Plaintiff's "[j]udgment and insight are within normal limits", "[r]ecent and remote memory intact", and "[n]o mood disorders noted, calm affect." Tr. 395, 397. Nonetheless, Dr. Bandlamuri's more detailed treatment notes indicate that throughout the treatment period she continued to assess and treat Plaintiff for depression. Tr. 385.

In August 2008, Dr. Bandlamuri completed a disability form noting that Plaintiff has a history of depression, that he does not currently have a significant mental impairment, but that his mental condition causes significant interference with functioning in usual daily activities as it "may cause lack of motivation to shower, take med[ication]s, etc." Tr. 568.

ii. Examining Sources

Susan Courtney, M.D., a specialist in family practice and occupational medicine, performed a disability evaluation of Plaintiff on June 8, 2008. Tr. 512-514. Dr. Courtney noted Plaintiff is on antidepressants for depression. Tr. 512. Dr. Courtney reported that Plaintiff stated that if his job were still available, he would "go back in a second." Tr. 513. Dr. Courtney did not address Plaintiff's mental limitations as they might affect his ability to work. See Tr. 514.

John T. Beck, Ph.D., completed a neuropsychological evaluation of Plaintiff on March 30, 2010. Tr. 688-92. Dr. Beck reviewed Plaintiff's records, conducted a clinical interview, and administered numerous tests for purposes of the evaluation. Tr. 688-89. Dr. Beck explained that, while it can often be problematic to obtain test results which accurately represent a person's true level of ability because financial compensation may be at stake, there was "no indication in this evaluation that [Plaintiff] was not fully cooperating or putting forth his best effort." Additionally, Plaintiff "was administered instruments specifically designed to measure his motivation and cooperation" and the "results indicate that [Plaintiff] was adequately motivated during testing and that the scores reported... should be considered valid." Tr. 691.

Dr. Beck concluded that Plaintiff test results demonstrated "moderate deficits in higher cortical function with significant impairments in abstract reasoning, judgment, insight, memory, planning ability, organizational skills, and skills requiring concentration and attention." Tr. 691. Additionally, there were "significant signs of attentional deficits" and abnormal memory. Id. Dr. Beck's diagnostic impressions and conclusions were as follows:

In his interactions with me, the examinee's behavior was not normal. He displayed an agitated depression, fine motor tremor, and looked quite impaired. On today's testing, he demonstrates a clear loss of neuro-cognitive ...

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