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Winans v. Colvin

United States District Court, D. Arizona

August 29, 2014

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

ORDER

BERNARDO P. VELASCO, Magistrate Judge.

Plaintiff, Charlotte Winans, 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) properly evaluated the absence of diffuse muscle atrophy, muscle wasting, and weight loss; (2) whether substantial evidence supports the ALJ's evaluation of treating physician Dr. Sampson's opinions; and (3) whether substantial evidence supports the ALJ's finding that Plaintiff was not credible. (Doc. 13.) Before the court is an opening brief filed by Plaintiff (Doc. 13), the Commissioner's opposition (Doc. 14), and Plaintiff's reply (Doc. 15).

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. (Doc. 9, 10.)

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 December 2010, alleging disability as of December 2006 due to neck and back pain, and numbness in her hands and arms. Transcript/Administrative Record (Tr.) 153-56, 173. The application was denied initially and on reconsideration. Tr. 77, 88, 99-102, 104-106. Plaintiff appeared with counsel and testified before an ALJ at an administrative hearing. Tr. 29-76. On May 30, 2012 the ALJ issued a decision finding Plaintiff not disabled within the meaning of the Social Security Act. Tr. 4-14. This decision became the Commissioner's final decision when the Appeals Council denied review. Tr. 19-21. 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 47 years of age on the December 13, 2006 alleged disability onset date, and 52 years of age on her date late insured, December 31, 2011. Tr. 153, 169. Plaintiff has a high school education and worked in the recent past as a cashier/stocker, construction worker, and as a house cleaner. Tr. 59, 173-74.

Plaintiff testified at a hearing before the ALJ on April 26, 2012 that she has had a limp for the last two years because she started getting numbness in her leg about four years prior to the hearing. Tr. 33. Plaintiff wore wrist braces to the hearing, and stated she had been wearing them "off and on" for two to three years. Tr. 34. Plaintiff testified that in December 2006, she would not have had trouble walking because she had a little bit of back pain, but no leg pain. Tr. 36-37. She would have been able to stand about 20 minutes before sitting down, and then she could sit for about 15 to 20 minutes. Tr. 37. Plaintiff testified that she thought that in December 2006 she would have been able to lift 15 to 20 pound with her right arm and probably 10 pounds with her left arm. Tr. 37.

At the time of the hearing, Plaintiff thought she could walk maybe five to 10 minutes before her pain caused her to stop and rest for probably 10 minutes. Tr. 38. Plaintiff thought she probably couldn't stand more than 10 minutes before she would have to sit down. Tr. 38. She could sit for about 15 or 20 minutes as long as she kept shifting her weight from side to side. Tr. 38-39. Plaintiff thought she could currently lift three or four pounds in her right arm, and that she didn't lift anything with her left arm. Tr. 39. Plaintiff clarified that she has always carried things with her right arm, and uses her left arm to assist because she doesn't "have that much strength in [her] left hand." Tr. 40. Plaintiff stated that since her onset date her problems have gotten a lot worse because she is losing feeling in her legs, her hands, and her feet due to nerve damage. Tr. 41.

Plaintiff testified that the numbness or weakness in her hands affects her ability to use her hands around the house, for instance, she can't open a jar, can't write or use a computer for more than five minutes because of numbness and pain in her hands, and has difficulty feeling objects. Tr. 44-46. Plaintiff explained that when she hurt her back at work in 2005 or 2006 and was sent to a workman's compensation doctor, he suggested that nerve conduction studies be performed, but workman's compensation denied the study. Tr. 48-49. Plaintiff stated that the only test they did perform was for carpal tunnel, and those tests were negative. Tr. 49.

Plaintiff also has numbness in her right leg, and, on a scale of zero to 10, most days she would rate her pain a nine. Tr. 52-53.

Plaintiff had been seeing her current physician, Dr. Matthew Sampson, for a little over a year. Tr. 43. Plaintiff lost her insurance in 2006, and paid out of pocket for her visits until she got insurance in August, 2011. Tr. 44, 50. She didn't see him any more often after she got insurance because her insurance considered her back condition to be pre-existing, and wouldn't cover it. Tr. 44.

Plaintiff's medical condition affects the things she does at home, for instance, she can't clean the house very much, can't stand to cook, and as a result of the medications she takes for her conditions, lorazepam, hydrocodone, and Soma, she has to lie down during the day and sleep for a couple of hours. Tr. 53-54. Sitting in a chair causes her leg to go numb. Tr. 54. Nothing Plaintiff has tried, including physical therapy, medications, and steroid injections, has provided any long-term pain relief. Tr. 54.

Plaintiff testified that she also has anxiety, which causes her to cry a lot, lose patience, and avoid people. Tr. 55. She also has zero tolerance for stress because of her anxiety and her pain. Tr. 56.

A vocational expert (VE) testified that Plaintiff's past relevant work in construction was a heavy position; her work as cashier/stocker was a heavy, semiskilled position with an SVP of 4, and her work as a barista[1] was a medium, semi-skilled position with an SVP of 3 or 4. Tr. 62-65. The VE testified that a hypothetical individual would not be able to perform Plaintiff's past relevant work when the ALJ posed the following hypothetical limitations: Light level work with no use of ladders, ropes or scaffolds, but no limits in stooping. Limited to frequent use of ramps and stairs, and frequent kneeling, crouching, crawling, reaching, handling, fingering and feeling. Avoidance of exposure to unprotected heights or dangerous machinery. Cannot perform tasks in a fast paced environment. Can attend and concentrate for two hours, then needs a 10 to 15 minute break, and can then attend for two more hours followed by a lunch break, with a similar afternoon schedule. Tr. 66-67.

The VE testified that the same hypothetical individual with the very same functional restrictions, with the same age, vocational and educational background, as well as some further education on manicures, could perform jobs in the national or regional economies, specifically sales attendant in a self-service store, which is a light unskilled job, with an SVP of 2, and requires frequently reaching, handling, and occasional fingering. Tr. 67-68. The VE also found that the individual could perform the job of cashier, a light unskilled job with an SVP of 2, and as a storage facility rental clerk, a light unskilled job with an SVP of 2 which requires frequent reaching, handling, and no fingering. Tr. 68-69.

The VE explained that if any individual cannot attend for up to two hours at a time, it would eliminate employment. Tr. 69-70. The VE agreed that if any individual is unable to tolerate routine work stress, so they are not working at a competitive speed, they could not work. Tr. 103.

The VE also testified that an individual would be precluded from performing the jobs she had identified if the individual was precluded from crouching, kneeling, squatting, reaching above shoulder level, and working with arms in front, as well as avoiding pinching, fine movements, feeling, and touching. Tr. 73. Additionally, the VE agreed that if the individual was limited to sitting or standing for 15 minute blocks of time, and then had to lie down, that would also preclude all the jobs the VE had identified. Tr. 74. If the individual had to avoid people when she's in pain, so that she would need to be totally absent from co-workers, supervisors, or the public more than two days a month, that would also preclude all the jobs identified by the VE. Tr. 74. The VE also testified that an inability to lift even seven pounds would preclude the identified jobs. Tr. 74-75.

b. Relevant Medical Evidence Before the ALJ

i. Treating Sources

In January 2005, MRI of Plaintiff's lumbar spine revealed several abnormalities, including spondylosis with broad based disc bulge and left paracentral protrusion with slight indentation of the left ventral thecal sac at L2-3; spondylosis with broad based disc bulge protrusion, contacting the S1 nerve root bilaterally without displacement at L5-S1; and mild to moderate degenerative changes at L4-5 and L5-S1. Tr. 277-78.

Plaintiff was seen by Dr. Michael Fairfax, a rheumatologist, in January 2006, for complaints of diffuse musculoskeletal pain, polyarthralgias, and myalgias, fatigue and non-restorative sleep. Tr. 296. The last treatment note from Dr. Fairfax in May 2006 assessed Plaintiff with probable fibromyalgia, chronic insomnia, and probable carpal tunnel syndrome, and recommended treatment with Vicodin, Flexeril, and recommended nerve conduction studies to further assess the carpal tunnel syndrome, and nocturnal splints. Tr. 294.

Plaintiff was seen for a total of seven physical therapy visits from June to July 2006. Tr. 268. Plaintiff reported slow but gradual reduction in hand and arm soreness, as well as reporting on her last visit moderate gains in her strength on her arms, hand, and wrist regions, although this was accompanied by mild additional cervical spine and arm soreness. Tr. ...


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