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Ramos v. Colvin

United States District Court, D. Arizona

March 30, 2015

Francisco Javier Ramos, 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. 15). Defendant filed her Opposition to Plaintiff's Opening Brief ("Response") (Doc. 16), and Plaintiff filed his reply (Doc. 17). 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 June 14, 2011, Plaintiff filed an application for Social Security Disability Insurance Benefits ("DIB") alleging disability as of July 5, 2009 due to left ear loss of hearing, gout in his fingers, diabetes, high blood pressure, and right and left Achilles tendon injuries. See Administrative Record ("AR") at 23, 25, 39, 59, 71, 85, 92, 148, 150, 180, 197, 206, 256. Plaintiff's date last insured was September 30, 2014. Id. at 59, 71, 180, 206, 256. The Social Security Administration ("SSA") denied this application on October 21, 2011. Id. at 23, 58-69, 85-88. On November 29, 2011, Plaintiff filed a request for reconsideration, and on March 14, 2012, SSA denied Plaintiff's request. Id. at 23, 70-84, 89, 92-94. On April 11, 2012, Plaintiff filed his request for hearing.[1] Id. at 23, 95. On October 4, 2012, a hearing was held before Administrative Law Judge ("ALJ") Laura Havens.[2] AR at 23, 35-57. The ALJ issued an unfavorable decision on October 19, 2012. Id. at 20-30. On December 6, 2012, Plaintiff requested review of the ALJ's decision by the Appeals Council, and on November 13, 2013, review was denied. Id. at 2-5, 19. On December 19, 2013, Plaintiff filed this cause of action. Compl. (Doc. 1).

B. Factual History

Plaintiff was sixty-one (61) years old at the time of the administrative hearing and fifty-eight (58) at the time of the alleged onset of his disability. AR at 39, 59, 71, 150, 180, 206, 256. Plaintiff has a high school diploma, and has taken two years of college. Id. at 39, 58, 70. Currently, Plaintiff works part-time as a cashier at Circle K. Id. at 25, 40-41, 156, 172, 177. Prior to his alleged disability, Plaintiff owned a gift shop, and worked as a retail sales clerk, and a produce inventory control clerk. Id. at 41-42, 68, 82, 160-67, 184-87, 198, 235, 245-46.

On December 23, 2011, Estela O. Felix, a long time friend of Plaintiff, filled out a Function Report regarding Plaintiff. Id. at 217-24. Ms. Felix described Plaintiff's daily activities as "gets up[, ] showers, goes shopping, pays bills, has breakfast, lunch, [and] dinner, works 4 to 5 hr. a day, takes wife to [doctor] appointment, take care of wife that [sic] is 100% disable[d]." AR at 217. Ms. Felix stated that Plaintiff cares for his wife. Id. at 218. Ms. Felix further described Plaintiff prior to his disability as "[a] very active person at work [and] with the community and sports." Id. She also stated that Plaintiff has pain and "need[s] to take medication to be able to sleep [and] control pain[.]" Id. Ms. Felix stated that Plaintiff does not need any help with his personal care. Id. at 218-19. Ms. Felix further indicated that Plaintiff does not cook, unless his wife is unable to do so. AR at 219. Ms. Felix stated that Plaintiff does laundry and vacuums approximately two (2) hours per week. Id. She also reported that Plaintiff goes outside every day, and can go out alone, as well as drive. Id. at 220. In addition, Ms. Felix stated that Plaintiff goes out twice per week for a couple of hours to shop for groceries, prescriptions, and clothes. Id. Ms. Felix further reported that Plaintiff can pay bills, count change, handle a savings account, and use a checkbook. Id. at 220. Ms. Felix stated that Plaintiff watches news on television, as well as sports, for short periods. AR at 221. Ms. Felix also reported that although Plaintiff has "slow[ed] down in all of his activities about 70%[, ]" "he does well with his limitations[.]" Id. Ms. Felix said that Plaintiff spends times with other people, talking with customers, going to work and church, visiting his family, although she estimates that Plaintiff has decreased such activities by approximately 70%. Id. at 221-22. Ms. Felix reported that Plaintiff has difficulty lifting, squatting, bending, standing, reaching, walking, sitting, kneeling, hearing, climbing stairs, seeing, and using his hands. Id. at 222. Ms. Felix explained that gout affected Plaintiff's joints, he lost hearing, 90% on the left and 58% on the right, he has issues with his Achilles tendons, and cataracts in both eyes. Id. Ms. Felix reported that Plaintiff is right handed, can walk for fifteen (15) minutes and then requires a fifteen (15) minute rest before resuming walking. AR at 222. Ms. Felix also reported that Plaintiff has no trouble paying attention or following instructions, handles stress well, and can adapt to changes in routine. Id. at 222-23. Ms. Felix reports that Plaintiff uses a cane, and has glasses and a hearing aid, all prescribed by a doctor. Id. at 223. Finally, Ms. Felix stated that despite Plaintiff's pain, he does not complain. Id. at 224.

On January 15, 2012, Plaintiff's son, Francisco J. Ramos, Jr., filled out a Function Report on his behalf. Id. at 227-34. Mr. Ramos described his father's day as starting "by taking a bath, go out shopping, pay bills, have lunch, go out and work 4-5 hours a day, come home, watch the news and go to sleep." AR at 227. Mr. Ramos indicated that Plaintiff takes care of his wife, taking her to doctor's appointments and out shopping. Id. at 228. Mr. Ramos reported that "[b]efore 2009 he was able to work 70 [hours] a week[, ] [but] [n]ow with his disability he can't works [sic] those hours." Id. Mr. Ramos further reported that "[t]he pain in [Plaintiff's] joints does not allow him to sleep well at night[, ] [and] [h]e is taking medication right now but it doesn't seem to help with the pain." Id. Mr. Ramos stated that Plaintiff does not have any problems with personal care, or need help remembering to do things like take his medication. Id. at 229. Mr. Ramos also stated that his mother cooks for Plaintiff, because [h]e cannot be standing for long period[s] of time and his constant pain with his joints." AR at 229. Mr. Ramos reported that Plaintiff "is able to do minor work [and] assist [Mr. Ramos's] mother with the laundry and dusting around the house." Id. Mr. Ramos further reported that Plaintiff goes out every day, can drive a car, and can go out unaccompanied. Id. at 230. Mr. Ramos also reported that during Plaintiff's trips out, he buys groceries and picks up prescriptions. Id. Mr. Ramos stated that Plaintiff can pay bills, count change, handle a savings account, and use a checkbook. Id. Mr. Ramos further stated that Plaintiff "enjoys reading and watch[ing] the TV news[, ] [which]... [h]e does [] every evening for a couple of hours depending of [sic] how he feels." AR at 231. Mr. Ramos also stated that previously Plaintiff "was able to enjoy TV for a longer period of time, but with his hearing problem and joints he tends to watch less TV and read less because of the pain." Id. Mr. Ramos reported that Plaintiff "attends Sunday Mass." Id. Mr. Ramos observed that Plaintiff "limits himself with the family now and on the phone due to his hearing loss." Id. at 232. Mr. Ramos reported that Plaintiff's conditions affect his lifting, squatting, bending, standing, reaching, walking, sitting, kneeling, hearing, stair climbing, seeing, understanding, and using his hands. Id. Mr. Ramos stated that Plaintiff "is able to carry at least 10 pounds due to his pain in his hands and joints[, ] [h]e is not able to stand for a long period of time due to his [A]chilles tendonitis [sic] and now with hearing problem[, ] [h]e has a hard time hearing others." AR at 232. Mr. Ramos reported that Plaintiff is right handed, can walk a "couple of hundred yards" before he needs to stop, and must rest 5-10 minutes before resuming walking. Id. Mr. Ramos stated that Plaintiff has not problem paying attention, and can follow written and verbal directions. Id. Mr. Ramos further stated that Plaintiff handles stress and change very well. Id. at 233. Mr. Ramos reported that Plaintiff "is less active due to his pain and hearing problem[, ] [and]... has been more quiet with the family." Id. Mr. Ramos further reported that Plaintiff uses a cane, hearing aid, and glasses, all of which were prescribed by a doctor. AR at 233. Finally, Mr. Ramos reported that Plaintiff "constantly complain[s] about pain[, ] [and] [m]edication doesn't seeNNNNNm to be helping." Id. at 234.

On February 13, 2012, Plaintiff reported that he lived in a house with family. Id. at 247. Plaintiff stated that he "used to work 7 days/wk - 70 [hours][, ] [and] [i]n 2008 due to health reduced [hours] 20-28 a week." Id. Plaintiff further stated that his Achilles tendon and gout affect his standing, and high blood pressure and diabetes limits physical work. Id. Plaintiff described his day as "getting up early - shower, shave, go to work a few hours, then come home [and] take wife (disabled) for shopping, [doctor's] [appointments], pay bills, etc." AR at 248. Plaintiff reported caring for his wife, and doing laundry. Id. Plaintiff further reported that prior to his illness he was able to "work more [hours], play baseball, [and] swim." Id. Plaintiff also reported that his conditions affect his sleep, and he uses Tylenol PM to get to sleep. Id. Plaintiff stated that he has no problems with personal care, and his wife does the cooking, although he will cook on days that she is not able. Id. at 249. Plaintiff also stated that he does laundry, small repairs on the house, and vacuums. AR at 250. He does not require encouragement or assistance to do these tasks, goes out every day, can drive a car, and go out unaccompanied. Id. Plaintiff reported that he goes to the store and buys groceries and prescriptions or other items needed. Id. Plaintiff further reported that he is able to pay bills, count change, handle a savings account, and use a checkbook. Id. at 251. Plaintiff stated that his television viewing is limited due to his sight and hearing, although he does watch television daily. Id. Plaintiff stated that he spends time with others daily, but his hearing problem affects socializing. AR at 251. Plaintiff further stated that he attends church regularly. Id. Plaintiff reports no problems getting along with others, although he is more reserved socially. Id. at 252. Plaintiff reported that his conditions affect his lifting, squatting, bending, standing, reaching, walking, kneeling, hearing, stair climbing, seeing, and using hands. Id. Plaintiff further reported that he is right handed, and he can walk 200-300 yards before he needs to rest for a few minutes. Id. Plaintiff stated that he had no limitations on his ability to pay attention, follow written or spoken instructions, handle stress, or changes in routine. AR at 252-53. Plaintiff indicated that his hearing loss has caused a fear of a fire or other problem occurring. Id. at 253. Plaintiff stated that he has a cane, hearing aid, and glasses, all prescribed by a doctor. Id. Plaintiff indicates that although he is on several medications, they do not have side effects, and that he needs cataract surgery, but does not have insurance. Id. at 254.

1. Plaintiff's Testimony

At the administrative hearing, Plaintiff testified that the pain of the Achilles tendon in his right foot, kidney stones, and gout, became increasingly worse resulting in his inability to work as of July 5, 2009. AR at 39-40. Plaintiff further testified that he returned to work at Circle K on March 15, 2011, part time, because he and his wife needed money for medical bills. Id. at 40-41. Plaintiff also testified that he suffers from diabetes, high blood pressure, gout, Achilles tendinitis, cataracts, lumbar degenerative disc disease, osteoarthritis, kidney stones, and arthritis in his hands. Id. at 41.

Plaintiff testified that he lives in a house with his wife of forty plus years. Id. at 42, 247. Plaintiff further testified that he wakes up around 10:00 or 11:00 a.m., bathes, gets dressed, does household chores including cooking, washing dishes, mopping or sweeping, laundry, and grocery shopping. Id. at 43, 51. Plaintiff testified that he does not have any hobbies other than watching the news on television. AR at 43. Plaintiff further testified that although he is in motion "all the time[, ]" he does not exercise. Id. Plaintiff testified that he drives, and can probably go a couple of hours in the car. Id. Plaintiff further testified that he does not have any problem eating, but does have problems sleeping. Id. at 43-44. Plaintiff testified that he takes Tylenol P.M. to help him with the pain and to fall asleep. Id .; see also AR at 248. Plaintiff stated that although he spends about twelve (12) hours in bed, he is only sleeping between six (6) and seven (7) hours per night. AR at 44.

Plaintiff testified that he sees a doctor approximately every three (3) months at Mariposa Community Health Center for prescription refills and laboratory analyses. Id. at 44-45. Plaintiff reported that the medications cause sleeplessness, diarrhea, and sunburn -as if he is "allergic to the sun." Id. at 45. Plaintiff testified that he has been on his feet for his work for eight hours, and he does not like to sit, "because if I'm sitting down for so long it's like my body gets stiff or uptight." Id. at 45. Plaintiff further testified that the twenty-four (24) hours per week he works is in eight (8) hour shifts; however, his employer accommodates his needs by scheduling Plaintiff in a way that maximizes his ability to rest and recover after a shift. Id. at 45-46.

Plaintiff testified that he has not been able to lift more than twenty (20) pounds since 1988. Id. at 46. Plaintiff also testified that he is able to grasp a book or a cup, use a register, and sense hot and cold in his hands. AR at 46. Plaintiff further testified that he has "bad days and... worse day[s, ]" because he has pain every day. Id. at 47. Plaintiff testified that on a scale of one (1) to ten (10), with ten (10) being the most severe, his daily pain is between a four (4) and seven (7), averaging approximately six (6). Id. Plaintiff explained that the pain from his Achilles tendon is as if someone were "nailing something on the bottom of [his] tendon[, ]... in [his] knee it comes from the side[, ]... in [his] back, lower back it's just something right under [him] that's burning and... it's like a baseball side here in [his] back that it hurts and the ones over here from the beginning of the rib cage to the middle, right here which is the kidney pain... [a]nd [his] right shoulder... [he] cannot lift [his] hand all the way up because that hurts." Id. at 47-48. Plaintiff testified that he has had four (4) surgeries in each hand, an appendectomy, surgical procedures for his kidney stones, and surgeries on his Achilles tendons. Id. at 49. Plaintiff further testified that he did not have surgery when he broke his clavicle, and they healed slightly overlapped. AR at 49.

Plaintiff testified that he originally went to work at Circle K as a full time employee in March 2011. Id. at 50. Plaintiff further testified that the forty (40) hours was too much, so his employer reduced his hours, and moved him to a lower traffic store in an effort to accommodate Plaintiff's health issues. Id. at 50. Plaintiff also testified that the fatigue increases his pain. Id. Plaintiff testified that on his "worse days" he spends a lot of time napping and resting. Id. at 51. Plaintiff further testified that sitting for too long causes his body to get stiff. AR at 51.

2. Vocational Expert Tracy Young's Testimony

Tracy Young testified as the vocational expert at the administrative hearing. Id. at 52-56. Ms. Young described Plaintiff's prior substantial gainful activity as a small business owner, Dictionary of Occupational Titles ("DOT") number 185.167-046, a light, skilled job, with a Specific Vocational Preparation ("SVP") of 7, although Plaintiff performed it as at least medium. Id. at 52. Ms. Young described Plaintiff's prior work as a wholesale sales representative of food products as DOT number 260.357-014, a light, skilled job, with an SVP of 5. Id. at 52-53. Ms. Young described Plaintiff's prior work as an inventory control clerk as DOT number 219.387-030, a light, skilled job, with an SVP of 5. Id. at 53. The ALJ asked if "these jobs [held] any transferable skills to sedentary work." Id. Ms. Young testified that possibly sales skills would transfer to sedentary work. AR at 53. The job Ms. Young suggested as using transferable skill would be a customer order clerk, DOT code 249.362-026, sedentary, semiskilled, with an SVP of 4. Id. Ms. Young testified that there are about 90, 600 such jobs nationally, and approximately 1, 630 jobs in Arizona. Id. at 54.

The ALJ asked the VE a hypothetical regarding an individual of the same age, education, and vocational background as the Plaintiff. See id. at 54. In the hypothetical, the ALJ asked about someone who could "sit six hours out of an eight hour day, stand four hours out of an eight hour day and walk four hours out of an eight hour day, requires a sit, stand option to perform a job, can occasionally lift and carry 20 pounds, frequently lift and carry 10 pounds, can only occasionally climb stairs, never climb ladders, occasionally balance, stoop, kneel, crouch and crawl[, ] and... must avoid concentrated exposure to heights, moving machinery and excessive noise." Id. at 54. The ALJ inquired whether such an individual could perform "any of the jobs performed by [Plaintiff] in the past either as he performed them or as they're performed in the national economy." AR at 54. Ms. Young testified that small business owner would be eliminated, but the inventory control clerk and sales representative food products jobs would be available. Id. at 54-55. Ms. Young further testified that although this would be a deviation from the DOT, she based her opinion on her ...


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