United States District Court, D. Arizona
BERNARDO P. VELASCO, Magistrate Judge.
Plaintiff, Jose Arturo Alvarez, 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 two issues on appeal: (1) whether the ALJ's determination that Plaintiff's spinal condition does not meet or equal any of the listed impairments in 20 C.F.R. 404, Subpart P, Appendix 1 ("the Listings" or "Listing of Impairments") is supported by substantial evidence; and (2) whether substantial evidence supports the ALJ's residual functional capacity (RFC) assessment. (Doc. 21.) Before the court is an opening brief filed by Plaintiff (Doc. 21), and the Commissioner's opposition (Doc. 22), no reply brief was filed.
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. 12.)
The Commissioner's decision denying benefits is reversed and remanded for further proceedings consistent with this order.
Plaintiff filed an application for Disability Insurance Benefits (DIB) on August 3, 2010, with a protective filing date of July 20, 2010, alleging disability as of November 1, 2008, due to congenital fusion of C2-C3 cervical spine, a right ear hearing problem, and a right eye vision problem. Transcript/Administrative Record (Tr.) 158, 162. The application was denied initially and on reconsideration. Tr. 67-96, 98-100. Plaintiff appeared with counsel and testified before an ALJ at an administrative hearing. Tr. 34-66. On January 13, 2012 the ALJ issued a decision finding Plaintiff not disabled within the meaning of the Social Security Act. Tr. 7-18.
A. Plaintiff's Background and Statements in the Record
Plaintiff was 43 years of age on the November 1, 2008 alleged disability onset date, and 46 years of age as of the date of the Commissioner's final decision. Tr. 141. Plaintiff has a 12th grade education, and past work experience as a mining car loader, a construction worker, and a cable service technician. Tr. 163, 168, 199.
Plaintiff testified at a hearing before the ALJ on December 5, 2011 that he had not worked at all since November 2008. Tr. 39. Plaintiff testified that he could not return to any of his previous jobs because he "wouldn't be able to handle them" because he doesn't have the strength, and couldn't stand up that long. Tr. 50-51. He testified that he couldn't do a sedentary job because he can't be sitting down for a long time. Tr. 54, 58-59.
Plaintiff testified that he could probably walk for about 15 to 20 minutes before he needed sit down for five to 10 minutes, and then could walk again, and that he normally walks with a slow gait. Tr. 39-40, 46. Plaintiff can only sit or stand for five minutes at a time. Tr. 40-41. Plaintiff can lift 15 to 20 pounds with each arm.
Plaintiff testified that his pain has gotten worse, and his primary doctor told him that the cause of the pain is the fusion in his spine, and two pinched nerves in his neck. Tr. 42. Plaintiff didn't recall ever telling the consultative examining physician that he didn't have any problems walking. Tr. 45-46.
Plaintiff testified he lost his hearing in his right ear, and his sight in his right eye. Tr. 47. On further questioning, Plaintiff explained he can see with his right eye, but has problems seeing. Tr. 47. Plaintiff needs glasses but cannot afford them. Tr. 48. Plaintiff testified that his hearing loss in his right ear had gotten worse since his assessment of mild hearing loss in April 2011. Tr. 49-50.
B. Vocational Expert Testimony
A vocational expert (VE) testified that Plaintiff's jobs had all been more than sedentary, and the ALJ found that he would not be able to perform his past relevant work. Tr. 61. The ALJ posed the following hypothetical limitations to the VE: "limited to sedentary level work.... [C]annot use ladders, ropes, or scaffolds.... [C]annot perform tasks in a fast paced production environment... [and] is to avoid concentrated exposure to excessive noise or hazards.... [M]ust be afforded a sit stand option during the work day one to two minutes every hour or so.... [and] is limited to occupations that allow such an individual to use either glasses or a hearing aid on the job as needed.... and has the same vocational and education background as... Claimant." Tr. 61-62. The VE testified that the hypothetical individual could perform sedentary, unskilled and semi-skilled jobs, such as a sorter and a document specialist. Tr. 63.
The VE testified that if the hypothetical individual could not attend and concentrate for up to two hours at a time with appropriate breaks, the individual would not be able to maintain employment because of the disruption of the pace of the job. Tr. 64. Furthermore, if an individual can only sit for five minutes, then has to stand up and walk around for two or three minutes, and then can sit back down, the VE testified that such an individual could not perform any of the jobs the VE proffered.
C. The ALJ's Findings and Conclusions
The ALJ found that Plaintiff last met the insured status requirements of the Social Security Act through December 31, 2013. Tr. 12, ¶ 1. The ALJ found that Plaintiff had not engaged in substantial gainful activity since the alleged onset date of November 1, 2008. Tr. 12 ¶ 2. The ALJ found that Plaintiff has the following severe impairments: degenerative disc disease and congenital fusion of the cervical spine, unilateral hearing loss, and visual field contraction. Tr. 12, ¶ 3. The ALJ found that Plaintiff's impairments did not meet or equal any of the impairments found in the Listings, sections 1.04, 2.03, and 2.10. Tr. 13, ¶ 4. The ALJ found that Plaintiff has the RFC to perform sedentary work subject to the following: "He requires the option to alternate at will between seated and standing positions every hour or so for 1-2 minutes; he cannot climb ladders, ropes or scaffolds; he cannot perform tasks in a fast-paced production environment; he should avoid concentrated exposure to excessive noise, and to hazards such as unprotected heights or dangerous machinery; and he is further limited to occupations that allow an individual to use eyeglasses or a hearing aid on the job, as needed. Tr. 14, ¶ 5. The ALJ found that Plaintiff is unable to perform any past relevant work. Tr. 16, ¶ 6. The ALJ further found that considering the claimant's age, education, work experience, and RFC, there are jobs that exist in significant numbers in the national economy that Plaintiff can perform and concluded that Plaintiff was not under a disability from October 1, 2006 through the date of the ALJ's decision. Tr. 17-18, ¶¶ 7-11.
This decision became the Commissioner's final decision when the Appeals Council denied review. Tr. 1-3. Plaintiff then commenced this action for judicial ...