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Derr v. Colvin

United States District Court, D. Arizona

October 8, 2014

Rick Derr, Plaintiff,
v.
Carolyn W. Colvin, Acting Commissioner of Social Security, Defendant.

AMENDED ORDER[1]NUNC PRO TUNC

BERNARDO P. VELASCO, Magistrate Judge.

Plaintiff, Rick Derr, 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's (ALJ's) findings pertaining to substance use and evaluation of the opinion of treating psychiatrist Dr. Mittleman, and credibility are supported by substantial evidence. (Doc. 33.) Before the court is an opening brief filed by Plaintiff (Doc. 33), the Commissioner's opposition (Doc. 34), and Plaintiff's reply (Doc. 35).

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. 18, 19.)

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) and Supplemental Security Income (SSI) in September 2008, alleging an onset of disability beginning October 1, 2006, due to depression, anxiety, and attention deficit hyperactivity disorder (ADHD). Transcript/Administrative Record (Tr.) 164-71, 192, 196. The applications were denied initially and on reconsideration. Tr. 106-13, 116-22. On June 14, 2010 Plaintiff appeared with counsel and testified before an ALJ at an administrative hearing. Tr. 47-105. On November 10, 2010 the ALJ issued a decision finding Plaintiff not disabled within the meaning of the Social Security Act. Tr. 19-33. This decision became the Commissioner's final decision when the Appeals Council denied review. Tr. 6-9. 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 44 years of age on the October 1, 2006 alleged disability onset date, 47 years of age on his date late insured, March 31, 2009, and 48 years of age on the date of the ALJ's decision. Tr. 164. Plaintiff has an eleventh grade education[2]. Tr. 201. Plaintiff worked in the recent past as an auto body technician, construction worker, plumber's helper, and security guard. Tr. 196-96, 211-18.

Plaintiff testified at a hearing before the ALJ on June 14, 2010 that he was currently working as a security guard at a marina on a part-time basis. Tr. 50-51. Plaintiff lives on the property in a trailer and the work involves checking the gates once in the evening to make sure they were locked and checking the security monitors located in his trailer while he is watching television in the evening. Tr. 52, 71-72.

Plaintiff testified that in October 2006, depression and anxiety were the worst problems he was experiencing. Tr. 53. Plaintiff testified that he takes medication for his anxiety and depression, and it works some of the time. Tr. 59. Plaintiff estimates that three to four days out of a week his medication doesn't work. Tr. 60. Having depression affects his ability to work because he doesn't care about anything, and he has problems with energy, with sleeping, and with getting up in the morning. Tr. 75. Plaintiff was also diagnosed with ADHD and has a hard time focusing. Tr. 53-54, 88-89. Plaintiff was prescribed dexamphetamine to treat the ADHD, to give him "focus and energy." Tr. 89. Plaintiff testified that the medications he takes for his mental health issues cause side effects consisting of dry mouth, ear ringing, and insomnia. Tr. 64-65.

Plaintiff has gout which causes pain and swelling in his foot; his gout attacks usually subside in five days with the use of medication. Tr. 57, 86. Plaintiff is borderline diabetic but controls this condition with diet. Tr. 58. Plaintiff has tinnitus and hearing loss, and is not treating these conditions because it would involve buying expensive hearing aids. Tr. 59. In December 2009, Plaintiff was referred to a cardiologist for a stress test, and was advised that he needed to quit taking dexamphetamine. Tr. 61. Plaintiff testified that he complied with the recommendation. Tr. 61.

Plaintiff stated that he "drank when he was younger" but denied having a drinking problem and denied currently drinking alcohol. Tr. 61-62. Plaintiff recalled last having a beer with his niece on her birthday on January 16, 2010. Tr. 62.

Plaintiff admitted that he abused methamphetamine, but denied abusing cocaine. Tr. 62. Plaintiff maintained that he did not use cocaine despite evidence in the record of a treatment note, dated December 2009, that stated that Plaintiff "used to use cocaine and meth, but has not for over a year." Tr. 62.

In a typical day, Plaintiff gets up, tries to move around, goes outside, spends time with his sister at her house if he's "in the mood to do something" and watches television. Tr. 81-82. Plaintiff fixes his own meals and shops about once a week. Tr. 84-85. He doesn't have any hobbies any more. Tr. 84.

A vocational expert (VE) testified that Plaintiff's past relevant work as an auto body technician was a medium, skilled position with a specific vocational preparation (SVP) score of 7; his work as a lube technician was a medium, semiskilled position with an SVP of 4, his work as a plumber helper and construction worker was a heavy, semiskilled position with an SVP of 4, and his current work as a surveillance system monitor was a sedentary, unskilled position. Tr. 95. 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:

No exertional limitations. Occasionally use ramps and stairs, could not use ropes ladders or scaffolds, must avoid concentrated exposure to excessive noise and even moderate exposure to hazards. The hypothetical individual can deal with changes in a routine work setting, can attend and concentrate for two hours, then needs to take a fifteen minute break, can then attend and concentrate for two more hours, then needs to take a half hour or hour lunch break, then can attend for two more hours, then another fifteen minute break, then can attend for two more hours until the individual completes an eight-hour day.

Tr. 96, 101-102.

The VE testified that the same hypothetical individual with the very same functional restrictions, with the same age, vocational and educational background as Plaintiff could perform other jobs in the national or regional economy, specifically housekeeping cleaner, grocery bagger, and merchandise deliverer. Tr. 98-99.

The VE explained that if any individual cannot attend for up to two hours at a time, it would eliminate employment. Tr. 102. The VE agreed that if any individual is unable to complete a normal work day or work week without interruptions from psychologically-based symptoms, they could not work. Tr. 103.

b. Relevant Medical Evidence Before the ALJ

i. Treating Sources

Plaintiff received counseling and medication management at Marana Health Clinic between August 2007 and May 2010.[3] Tr. 304-70, 426-63, 464-72. Plaintiff, with assistance, completed a Behavioral Health Assessment and Service Plan Checklist in August 2007. Tr. 353-370. Plaintiff indicated on the form that he was diagnosed with ADHD by his primary care physician and was seeking psychiatric assessment and medical management and that he "self[-]medicates [with] meth" whenever he "can get it" Tr. 358-59, 361; see also Tr. 350 (noting ongoing substance abuse in August, 2007). Plaintiff stated that he doesn't drink alcohol now, but that he had problems in the past. Tr. 359. Plaintiff was assessed with ADHA[4] Inattentive type and methamphetamine use. Tr. 365. Plaintiff was assessed with a GAF[5] score of 50. Id. Dr. ...


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