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Meyer v. Colvin

United States District Court, D. Arizona

March 16, 2015

Linda Louise Meyer, Plaintiff,
v.
Carolyn W. Colvin, Acting Commissioner of Social Security, Defendant.

ORDER

BRUCE G. MACDONALD, Magistrate Judge.

Currently pending before the Court is Plaintiff's Opening Brief (Doc. 13). Defendant filed her Response to Plaintiff's Opening Brief ("Response") (Doc. 15), and no reply was filed. Defendant also filed a Notice of Supplemental Authority (Doc. 16) to apprise the Court of recent decisions by the Ninth Circuit Court of Appeals relevant to this case. 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.

I. BACKGROUND

A. Procedural History

On September 21, 2010, Plaintiff filed an application for Social Security Disability Insurance Benefits ("DIB") alleging disability as of June 1, 2010 due to osteoarthritis, severe back pain, hypertension, and left and right knee impairment. See Administrative Record ("AR") at 30, 54, 76, 77, 80, 85, 86, 90, 181, 188, 217, 220, 241. Plaintiff's date last insured was September 30, 2011. Id. at 45, 54, 77, 86, 217, 241, 299. The Social Security Administration ("SSA") denied this application on November 23, 2010. Id. at 30, 76-84, 101-4. On December 27, 2010, Plaintiff filed a request for reconsideration, and on February 8, 2011, SSA denied Plaintiff's request. Id. at 30, 85-94, 105-9. On March 16, 2011, Plaintiff filed her request for hearing. Id. at 30, 110-11. On October 26, 2011, a hearing was held before Administrative Law Judge ("ALJ") Lauren R. Mathon. AR at 30, 52-75. On December 19, 2011, a supplemental hearing was held before ALJ Mathon. Id. at 30, 43-51. The ALJ issued an unfavorable decision on January 26, 2012. Id. at 27-36. On August 29, 2012, Plaintiff requested review of the ALJ's decision by the Appeals Council, and on June 11, 2013, review was denied. Id. at 1-6, 299-305. On August 9, 2013, Plaintiff filed this cause of action. Compl. (Doc. 1).

B. Factual History

Plaintiff was sixty-five (65) years old at the time of the initial administrative hearing, sixty-six (66) at the time of the supplemental hearing, and sixty-four (64) at the time of the alleged onset of her disability. AR at 46, 57, 77, 86, 176, 181, 188, 217, 241, 257, 299. On October 17, 2010, Plaintiff was awarded Social Security retirement benefits. Id. at 55-56, 58, 97-100. Plaintiff is a high school graduate. Id. at 46, 58, 176, 221, 299. Prior to her alleged disability, Plaintiff worked for an automobile dealership and prior to that as an accounting clerk for Bethlehem Steel. Id. at 46-47, 61-64, 82-83, 93, 176, 195-216, 221, 226-28, 267-68, 299. In 2010, Plaintiff briefly applied for and received unemployment benefits; however, she stopped looking for work due to her health concerns and as a result stopped receiving benefits. Id. at 59-60, 272-98.

1. Plaintiff's Testimony

At the administrative hearing, Plaintiff testified that she is approximately 5' 5" tall and 216 pounds. AR at 57. Plaintiff further testified that she lives with her husband, who is also retired. Id. at 58. Plaintiff also testified that she receives Social Security retirement benefits, as well as a pension. Id. at 58-59. Plaintiff testified that she drives a car, but has not taken any trips outside of the Tucson area since June of 2010. Id. at 60-61.

Plaintiff worked at Chapman Automotive from 2001 until 2010, and described her previous work as involving finalizing paperwork and other details related to car sales. Id. at 61. Plaintiff estimated that she sat for approximately six (6) hours per day, with the remainder a combination of standing and walking. AR at 61-62. Plaintiff testified that monthly she would gather several files into a box and carry them to the storage area. Id. at 62-63. Plaintiff estimated that each box was between twenty (20) and twenty-five (25) pounds. Id. at 63. Plaintiff further testified that she had trouble lifting this amount, and sometimes co-workers would have to help her put the box on a chair to be pushed to the storage area. Id. at 65. Plaintiff also testified that she was having trouble sitting for as long as necessary during the last few months of employment. Id. at 66. Plaintiff testified that she was let go from Chapman Automotive, because she made a mistake resulting in an overpayment of commission. AR at 66. Prior to working at Chapman Automotive, Plaintiff testified that she was in an accounting position at Bethlehem Steel. Id. at 63. She further testified that the work at Bethlehem Steel was similar to that which she had done at Chapman Automotive. Id. at 63-64.

Plaintiff testified that on November 25, 2009, she had a left knee replacement, and prior to that a bunionectomy. Id. at 64. Plaintiff further testified that she had not had any further surgeries. Id. Plaintiff testified that in June 2010, she was on medication for pain in her right knee. AR at 68. Plaintiff further testified that at that time a knee replacement for her right knee was suggested. Id. Plaintiff also testified that her knees did not bother her sitting at work at that time, because she brought a stool and kept her knee up when she could. Id. Plaintiff testified that after June 2010, her back pain became progressively worse. Id. at 66. She began sitting down or reclining most of the time that she was home beginning in July 2010. Id. at 67. Plaintiff testified that her knees do not bother her now unless her back pain travels down her leg. AR at 69. Plaintiff further testified that her back pain was "for the most part" in her left leg, but that her right leg had been bothering her for "the last couple of days[.]" Id.

Plaintiff testified that she had not been back to see Dr. Sanon [sic] since June 2011, because he had told her that the shots would not cure her back problems, and she is afraid to have back surgery. Id. at 69-71. Plaintiff testified that Dr. Sanon [sic] thought that surgery would help her back pain; however, based on the experiences of people she knows outside of Tucson, she is concerned that back surgery will result in more problems. Id. at 71. Plaintiff further testified that her back pain has been progressive, starting just in her back, then through her buttock, and now down the side of her leg. Id. at 72. Plaintiff also testified that some days are better than others, and on bad days she needs to recline more. Id. Plaintiff testified that she has bad days three (3), four (4), or five (5) days per week, and that on those days it is difficult to bend over at the waist and she reclines more due to pain. AR at 73. Plaintiff further testified that she avoids stairs, because of both her back pain and her knees. Id. at 73-74. Plaintiff also testified that she is taking pain medication, meloxicam, for her right knee, and hoping that it will continue to be effective for awhile. Id. at 70, 74.

2. Vocational Expert David Janus's Testimony

Mr. David Janus testified as a vocational expert at the supplemental administrative hearing. AR at 47. Mr. Janus described Plaintiff's past work as a title clerk, Dictionary of Occupational Titles ("DOT") code 205.582-066, as sedentary, semiskilled, with a Specific Vocational Preparation ("SVP") of 3. Id. at 47, 49. Mr. Janus further testified that based on the ALJ's description of her job duties, including lifting files to take them to the storage room, the job would extend to an administrative clerk, DOT code 219.362-010, which is light, semiskilled, with an SVP of 4. Id. at 47, 49. Mr. Janus described the accounting clerk position, DOT 216.482-010, as sedentary, semiskilled, with an SVP of 5. Id. at 47-49.

The ALJ asked Mr. Janus hypotheticals regarding an individual of the same age, education, and vocational background as the Plaintiff. See id. at 48-49. In the first hypothetical, the ALJ asked about someone limited to medium level work, who can "lift 50 pounds maximum, 20 pounds repetitively; [and] no restrictions on standing, sitting, walking, bending or crouching." AR at 48. Mr. Janus testified that such an individual would be able to perform both jobs previously held by Plaintiff. Id. In the second hypothetical, the ALJ altered it to be an individual limited to sedentary work. Id. Mr. Janus testified that such an individual would be able to perform the duties of accounting clerk. Id. Finally, the ALJ asked about an individual who, in an eight-hour work day, could sit for three (3) hours total and stand and/or walk for one hour total. Id. Mr. Janus testified that such an individual would not be able to perform the Plaintiff's prior jobs, because the individual could not work full-time. AR at 49.

In response to Plaintiff's counsel's hypothetical, Mr. Janus further testified that an individual who missed three (3) days per month would not be able to sustain Plaintiff's past relevant work. Id. Mr. Janus also testified that there would not be any work that such an individual could sustain. Id. at 49-50. Mr. Janus confirmed that his testimony had been consistent with the DOT and his personal experience. Id. at 50.

3. Plaintiff's Medical Records

On August 20, 2009, Plaintiff was seen by Murray F. Nance, P.A.-C.[1] as a new patient regarding "a three week history of left knee pain." AR at 309. PA Nance reported that Plaintiff was started on meloxicam by her primary care physician approximately three weeks prior. Id. On exam, Plaintiff's left knee had "a 9 degree valgus deformity, 10 degree flexion contrature[, ]" and further flexes to 115 degrees, with the right knee very similar. Id. PA Nance injected Plaintiff's left knee with lidocaine, Marcaine, and DepoMedrol. Id.

On November 13, 2009, Plaintiff followed up with Russell G. Cohen, M.D. regarding her arthritic knee. Id. at 310. Dr. Cohen noted that the injection helped for a short time, but her pain persisted. AR at 310. Dr. Cohen reported the same features of Plaintiff's knees as PA Nance, and also noted good movement in her hips without discomfort. Id. Dr. Cohen reviewed the x-rays ordered by PA Nance in August, and noted "severe degenerative arthritis with bone-on-bone lateral compartments of both knees." Id. Dr. Cohen indicated knee replacement was his preferred treatment. Id. On November 24, 2009, Plaintiff was seen by PA Nance for a pre-operative physical prior to her total left knee arthroplasty, scheduled for the following day. AR at 311, 318-19. On November 25, 2009, Plaintiff underwent surgery for a total left knee replacement. Id. at 312, 316-17, 320.

On December 2, 2009, Plaintiff was seen by Venecia Rhodes, P.A.-C. for a follow-up regarding her left total knee arthroplasty. Id. at 330-31. Plaintiff complained of urinary frequency since release from the hospital, but otherwise was noted to be healing well. Id. On December 10, 2009, Plaintiff was seen by PA Nance for a checkup two weeks post left knee replacement. Id. at 313. PA Nance noted that Plaintiff was healing well, and was to continue therapy as prescribed. Id.

On January 7, 2010, Plaintiff was seen by Dr. Cohen for a follow-up of her left total knee replacement. Id. at 314. Dr. Cohen noted that her knee was healing well, although Plaintiff continued to have issues with pain. Id. Dr. Cohen further noted that Plaintiff complained of "some numbness and burning over the right thigh since she had the spinal done" just prior to surgery. AR at 314. Dr. Cohen referred Plaintiff to Dr. Goorman regarding the potential benefit of a nerve block. Id.

On April 8, 2010, Plaintiff was seen for another follow-up with Dr. Cohen. Id. at 315. Dr. Cohen noted that Plaintiff was mostly happy with the replacement, despite "a couple of episodes of discomfort." Id. ...


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