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Perez v. Colvin

United States District Court, D. Arizona

September 29, 2014

Danielle Ann Marie Perez, Plaintiff,
Carolyn W. Colvin, Acting Commissioner of Social Security, Defendant.


BRUCE G. MacDONALD, Magistrate Judge.

Currently pending before the Court is Plaintiff's Opening Brief (Doc. 25). Defendant filed her response (Doc. 30), and Plaintiff replied (Doc. 33). 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.


A. Procedural History

On March 16, 2011, Plaintiff filed an application for Social Security Disability Insurance Benefits ("DIB") and on July 21, 2009 filed an application for Supplemental Security Income ("SSI") alleging disability as of July 1, 2009 due to multiple hereditary exostoses and a broken femur as a result of a motor vehicle accident.[1] See Administrative Record ("AR") at 14, 90, 115, 126, 137, 145, 916-17. The Social Security Administration ("SSA") denied this application on December 17, 2009. Id. at 26, 32-35. On February 10, 2010, Plaintiff filed a request for reconsideration, and on April 21, 2010, SSA denied Plaintiff's request. Id. at 27, 36-42. On June 20, 2010, Plaintiff filed her request for hearing. Id. at 45. On March 16, 2011, a hearing was held before Administrative Law Judge ("ALJ") Lauren R. Mathon at which time Plaintiff's counsel moved to amend the Title XVI application to include the Title II application. Id. at 917, 975-85. In light of this amendment, the ALJ continued the hearing. Id. at 984. On May 9, 2011, a second hearing was held before ALJ Mathon. AR at 914-74. The ALJ issued a partially favorable decision on June 16, 2011. Id. at 10-23. Plaintiff was awarded Title XVI SSI benefits as of December 27, 2009, but the ALJ found Plaintiff was not disabled prior to December 27, 2009. Id. On August 12, 2011, Plaintiff requested review of the ALJ's decision by the Appeals Council, and on February 6, 2013, review was denied. Id. at 2-9. On April 1, 2013, Plaintiff filed this cause of action. Compl. (Doc. 1).

B. Factual History

Plaintiff was twenty-six (26) years old at the time of the administrative hearing, and twenty (20) at the time of the alleged onset of her disability.[2] AR at 24, 26, 27, 87, 90, 102, 122, 134, 143, 925. Plaintiff is a high school graduate. Id. at 120, 538, 928. Prior to her alleged disability, Plaintiff worked intermittently in fast food and retail. Id. at 98-100, 116, 151-52. Since 2006, Plaintiff worked for short periods at Pizza Hut, Plaza Del Sol Security, and Macto Security. Id. at 98-99, 105, 539, 929-31. More recently, Plaintiff has looked for work, but was never hired. Id. at 932.

1. Plaintiff's Testimony

At the administrative hearing, Plaintiff testified that she currently lives with her husband and six (6) year old daughter. AR at 926. Plaintiff further testified that a friend stays with them, although not consistently, and helps her around the house and with her daughter while her husband works. Id. at 926-28. Plaintiff also testified that she, her husband, and daughter previously lived with her mother, father, and younger brother. Id. at 929. Plaintiff testified that she does not have a driver's license and relies on others to drive her, but does not take public transportation.[3] Id. at 933. Since March 2006, Plaintiff testified that she has only left Tucson once on a trip with her father to visit family in Sacramento, California. Id. at 933-34. Plaintiff further testified that her father did all of the driving to and from California. Id. at 934.

Plaintiff testified that she has multiple hereditary exostoses ("MHE") or osteochondromatosis and was recently diagnosed as bipolar, having been previously diagnosed when she was a child as manic-depressive. AR at 936. Plaintiff further testified that she has had four surgeries as a result of the MHE, one on her left leg when she was eleven (11) years old; one on her right shoulder when she was twelve (12); one on her left shoulder when she was thirteen (13); and one on her right wrist when she was fourteen (14). Id. at 936-39. Plaintiff also testified that she had a fifth surgery on her right femur, as a result of 2009 motor vehicle accident, in which a titanium rod was placed from her hip to her knee. Id. at 939. Plaintiff testified that she suffered kidney failure after the automobile accident. Id. at 940-41. Plaintiff further testified that she has arthritis in her hands due to the MHE. Id. at 941. Plaintiff further testified that as a result she cannot type for very long, because her "fingers will stiffen and lock up." AR at 941. Plaintiff also testified that she is "unable to actually grip what needs to be gripped to open like a peanut butter jar or a can, [or] bottle." Id. at 941-42. Plaintiff testified that as a result she can only type for a few minutes at a time, and draw for approximately five (5) minutes. Id. at 942. Additionally, Plaintiff testified that how fast her fingers stiffen is also dependant upon the temperature. Id.

Plaintiff testified that she began using a wheel chair after she left the hospital following the December 2009 motor vehicle accident. Id. at 934-35. Plaintiff also testified that she "tried using a walker[, ] [but]... [she] just use[s] the wheelchair when [she] go[es] out of the house to places that might require lots of walking." AR at 936, 942. Plaintiff further testified that if it is "a place that doesn't require a lot of walking, then I try to do my best to do as much as I can to keep my legs at least moving." Id. at 942. Plaintiff testified that she is "not supposed to be moving around too much[, ] [she is] actually supposed to be elevating [her] leg." Id. at 942-43. Plaintiff further testified that both legs swell, and she tries to keep them elevated for "about three to four hours a day." Id. at 943. Her legs have swollen since she was a child, but prior to the accident she did not need to elevate her legs as often or as long. Id. at 945. Plaintiff testified that prior to the accident she would elevate her legs for approximately one (1) hour, once per week. AR at 945. Plaintiff also testified that she "can't really keep [her leg] in the same position too long, otherwise it will also lock up." Id. at 943. Plaintiff testified that her ability to walk and stand is dependant upon the weather and temperature, and before the accident she could walk approximately a half mile; however, now she can only walk for approximately five (5) minutes. Id. at 943-44. Plaintiff further testified that when her legs are fatigued, she falls. Id. at 944. Plaintiff testified that prior to the accident she was able to stand for approximately twenty (20) minutes, but she can only stand for a few minutes now, and "usually that's when [she is] holding onto either a wall or somebody's arm or the arm of the couch." Id. at 944-45.

Plaintiff testified that "[e]very job [she] had, [she has] either had to quit because of the limitations that [she has] had to endure, or because [she] was fired for not being able to live up to their standards[, ]" meaning she was unable "to do the job in a timely manner." AR at 946. Plaintiff does not remember being fired for any other reasons. Id. at 946. Plaintiff further testified that she only earned minimal wages, because she did not earn raises beyond her starting salary. Id. Plaintiff also testified that she was unable to stand for the period of time required while working, and had falls as a result of her MHE. Id. at 945-47.

Plaintiff testified that she was recently diagnosed bipolar, but prior to that she had been diagnosed as a manic-depressive. Id. at 947. Plaintiff further testified that she suffers from depression that takes "days to weeks to get out of" and she would become very emotional, show signs of fatigue, would not eat and could not sleep. Id. Plaintiff testified that this has been going on since she was approximately four (4) years old. Id. Plaintiff began seeing a psychiatrist when she was seven (7); however, the psychiatrist told her parents things that he had told Plaintiff that she "could tell him in secrecy." AR at 947. As a result Plaintiff "stopped trusting psychiatrists and... stopped seeing them until recently" when she was seen at CODAC. Id. Plaintiff testified that in the work setting, her mental problems caused her "to feel like [she] couldn't do the job required of [her]." Id. Plaintiff also testified that she "started feeling like no matter what [she] did, [she] could never get out of the hole [she] felt like [she] was in." Id.

Plaintiff testified that she had one seizure as a result of running out her medication after she lost her AHCCCS. AR at 948. Plaintiff further testified that some days she does not fall at all, but other times she might "fall four or five times in a day." Id. at 949. Plaintiff also testified that "[b]efore 2006, [she] fell maybe one or two times every couple of weeks to three weeks." Id. Since that time her bone condition has worsened. Id. Plaintiff testified that since she was eleven (11) years old, she has taken Vicodin, Valium and ibufprofen. Id. at 119, 950; see also AR 519. The ibuprofen is for the swelling, Valium for anxiety and as a muscle relaxer and Vicodin for the pain. AR at 119, 950. Plaintiff testified that as a result of these medications, she usually feels tired and rundown. Id. at 951. Plaintiff further testified that as an adult she would receive prescriptions for these medicines from either the "emergency room or from the doctor that [she] happened to see at that time, [who] would prescribe it to [her] because of [her] past history[.]" Id.

Plaintiff testified that she had one other car accident that occurred when she was pregnant with her daughter in 2004. Id. at 951-52. Plaintiff further testified that the accident was a result of two blow-out tires. Id. at 951. Plaintiff testified that she stopped driving within the three (3) years prior to the hearing. AR at 953.

Plaintiff testified that she has "ten calcium deposits along [her] spine[, ]... three in [her] pelvis bone[, ] [her] knees and [her] ankles, [her] toes, [her] shoulders, [and] the back of [her] neck." Id. at 953. Plaintiff further testified that as a result of these deposits "if it's really cold then [she] [can] barely move at all." Id. Plaintiff also testified that "[i]f it's really hot, then [she is] just really sluggish." Id. at 953-54. Plaintiff testified that she "can't bend very well at all." Id. at 954. Further, "[t]he swelling occurs because of calcium deposits in [her] left leg." AR at 954. Plaintiff also testified that if her "muscles get pinched... [she] end[s] up in a lot of pain." Id. at 954-55.

Plaintiff testified that her friend and her husband do the housework, and her daughter does her own chores. Id. at 955. Plaintiff further testified that her neighbor, who is like a second mother, helps by doing the cooking and helping her daughter get ready for school, and takes care of her when Plaintiff is unable to do so.[4] Id.

Plaintiff testified that she had to go to a class at Child Protective Services ("CPS"), but she was unable to complete it. Id. at 958. Plaintiff further testified that this occurred as a result of neighbors calling CPS when her daughter had night terrors. Id. at 959. Plaintiff further testified that at the time of the alleged incident their belongings were in boxes, because they were in the process of moving, and her daughter had strewn some of the items around causing disarray. Id. When the police arrived, they did not believe Plaintiff when she explained that her daughter was having night terrors. Id. Plaintiff tried to take the class a second time, but was told that they had lost the paperwork. Id. at 959. As a result, a warrant issued. Id.

2. Lay Witness Victor Browning's Testimony

Plaintiff's husband Victor Browning also testified at the administrative hearing. AR at 960. Mr. Browning testified that they were married on January 22, 2008, and have lived together since 2006. Id. Mr. Browning further testified that he met Plaintiff on June 19, 2006. Id. at 962. Mr. Browning also testified that he adopted Plaintiff's daughter and has no other children. Id. at 961. Mr. Browning testified that he works as an automotive technician. Id. at 961.

Mr. Browning described Plaintiff as having "issues" when they first met, including falling down occasionally, protrusions, being unable to lift her arm above her shoulder, and "days where she had a lot of pain and couldn't do much[.]" AR at 962-63. Mr. Browning further testified that "it's progressively gotten worse since then." Id. at 963. Mr. Browning testified that he "open[s] everything[, ]... [and] do[es] all the lifting." Id. Mr. Browning further testified that Plaintiff

can't lift a lot. Her dexterity is not that great. Her hand strength is not very good at all, so opening jars, no, even using a manual can opener is not - she can't really do that, either. Like I said, as far as lifting goes, I don't know she could ...

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