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Figueroa v. Colvin

United States District Court, D. Arizona

September 29, 2015

Ivan Figueroa, 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. 18). Defendant filed her Responsive Brief ("Response") (Doc. 20). Plaintiff did not reply. 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

Plaintiff received Supplemental Security Income ("SSI") benefits based on disability as a child. Administrative Record ("AR") (Doc. 15) at 14. When Plaintiff turned eighteen (18), his eligibility for SSI benefits was reevaluated under the rules for determining disability in adults. Id. at 14, 81. The Social Security Administration ("SSA") denied benefits on January 20, 2011. Id. at 14, 81, 83-86. On June 16, 2011, SSA denied Plaintiff's request for reconsideration. Id. at 14, 82, 87-90. On August 29, 2011, Plaintiff filed his request for hearing. Id. at 14, 99-100. On October 10, 2012, a hearing was held before Administrative Law Judge ("ALJ") Norman R. Buls. AR at 14, 34-62. The ALJ issued an unfavorable decision on November 1, 2012. Id. at 11-28. On December 14, 2012, Plaintiff requested review of the ALJ's decision by the Appeals Council, and on April 3, 2914, review was denied. Id. at 1-3. On December 11, 2014, Plaintiff filed this cause of action. Compl. (Doc. 1).

B. Factual History

Plaintiff was twenty (20) years old at the time of the administrative hearing and eleven (11) at the time of the alleged onset of his disability. AR at 37, 72, 102-104, 194, 273, 303, 328, 394. Plaintiff obtained a high school diploma and is currently taking classes at Pima Community College. Id. at 37, 198.

On August 18, 2010, Plaintiff filled out a Function Report - Adult, indicating that he "get[s] up. goin [sic] the school. come home do home work wath [sic] TV for ½ hr or so go to bed." Id. at 210. Plaintiff indicated "cougtn [sic] and breating [sic]" affect his sleep. Id. at 211. Plaintiff reported that he had no problem with personal care. AR at 211. Plaintiff stated that he requires help with his injections, and that his father prepares "meels." Id. at 212. Plaintiff reported that he does not do any household chores, either indoor or outdoor, due to his allergies and asthma. Id. Plaintiff further stated that he goes out daily, either in a car, walking or riding a bicycle; however, he is unable to drive himself. Id. at 213. Plaintiff indicated that shops for clothes twice a week; and although he is able to count change, he is otherwise unable to pay bills, handle a savings account or use a checkbook. AR at 213. Plaintiff listed watching television, particularly sport wrestling as his hobby or interest. Id. at 214. Plaintiff also stated that he goes to school every day, and sings with the school choir. Id. Plaintiff listed stair climbing, completing tasks, and understanding as areas which his illness affects. Id. at 215. Plaintiff reported that he can walk for approximately a half mile before needing to stop and rest, and can understand most instructions, but sometimes requires them to be repeated. Id. Plaintiff responded that he gets along well with authority figures, and can handle changes in routine, but his medication causes nervousness. Id. at 217.

On May 15, 2011, Plaintiff filled out a Headache Questionnaire indicating that he has had severe headaches since taking growth hormone pills and his asthma respirator. AR at 293. Plaintiff reported that the headaches occur three times a day and last for an average of twenty (20) to thirty (30) minutes. Id. Plaintiff further reported that the headaches cause him to be unable to concentrate as well as dizziness. Id. Plaintiff reported that his medication and asthma trigger the headaches, and taking Advil or laying down helps to alleviate them somewhat. Id. at 294. Plaintiff further stated that the headaches make him nervous and negatively affect his able to read, write, and interact with people, which causes frustration. Id. at 236.

On appeal, Plaintiff completed a Disability Report - Appeal (Form SSA-3441), indicating that he was suffering from more frequent headaches, and having "more trouble walking due to pain in right leg." AR at 275-90, 305-10. Plaintiff indicated that he was not currently employed, because he goes to school full-time. Id. at 282. Additionally, Plaintiff reported having headaches approximately three (3) times per day. Id. at 282, 287. Plaintiff stated that he gets up in the morning, goes to school all day, comes home, does homework, watches some television, and goes to bed. Id. at 283. Plaintiff reported asthma attacks and lack of breathing cause him to wake up at night with a migraine due to his medications. Id. Plaintiff further reported being able to take care of his personal hygiene, but required reminders regarding his injections, because his mother provided them. AR at 284. Plaintiff indicated that he does not do any food preparation, because he does not know how to cook, and does not help with household chores due to his allergies and asthma. Id. at 285. Plaintiff again reported going out every day, but cannot drive as he has been unable to pass the test because of his medications, his nervousness, and inability to concentrate. Id. Plaintiff stated that he shops for clothes twice a week, and is able to count change and handle a savings account, but is unable to pay bills or use a checkbook. Id. at 285-86. Plaintiff listed watching television and seeing baseball games as his hobbies, but stated that he is unable to sit for long periods because of his leg and asthma. Id. at 286. Plaintiff indicated that he sings with his school choir three (3) times per week, and also attends church and school. Id. Plaintiff indicated that his illness affects lifting, squatting, bending, standing, reaching, walking, sitting, kneeling, stair climbing, memory, concentration, and understanding. Id. at 287. Plaintiff reported that he can only walk approximately fifty (50) feet before he needs to rest, due to his crutches. Id. Plaintiff also indicated that he finds written instructions hard to understand, and needs spoken instructions repeated. Id. Plaintiff noted that he gets along well with authority figures, and can hand changes in routine. AR at 288. Plaintiff further reported using crutches, because of recent hip surgery on his right hip. Id. at 288-89.

1. Plaintiff's Testimony

At the administrative hearing, Plaintiff testified that he has a high school education, and lives with his mother, father, and two brothers. AR at 37. Plaintiff clarified that he was in special education classes while in school, from the first grade through high school. Id. at 47. Plaintiff further testified that he does not drive, and has not ever worked. Id. at 38. Plaintiff stated that he has not worked, because he does not have any experience, and he is currently continuing his education at Pima Community College. Id.

Plaintiff testified that at the time of the hearing he was taking a beginning math class, a class on the administration of justice, and was scheduled to start a reading course. Id. at 38-39. Plaintiff stated that he had dropped the reading class the previous year, because the instructor did not give him the accommodations that he was entitled to. AR at 47, 50. Plaintiff described his accommodations as having a note taker in his classes. Id. at 51. Plaintiff indicated that his grades the previous semester included a D in reading, a C in criminal justice, and an F in math. Id. Additionally, his older brother helps him with his homework at night. Id.

Plaintiff also testified that he travels to Mexico for family vacations and emergencies, such as a death in the family. AR at 39. Plaintiff described his physical ailments to include issues with his right hip. Id. at 39-40. The ALJ noted that Plaintiff's doctor released him to unlimited activities in August, and Plaintiff agreed, but indicated that he was now having trouble with his left hip, and had an upcoming appointment with his orthopaedic doctor. Id. at 40. Plaintiff further testified that he did not think he would be able to lift twenty (20) pounds due to the pain in his hip from the screw that was placed in it. Id.

Plaintiff described his day as waking up at approximately six (6) a.m., getting dressed, brushing his teeth, putting on his shoes, and getting his backpack for school. Id. Plaintiff testified that his father drives him to school, for his first class at seven (7). AR at 40. Plaintiff's father returns to pick him up after class at noon. Id. Plaintiff also indicated that sometimes, his parents have to remind him to do things like taking a shower or washing his hair. Id. at 62. Plaintiff testified that he watches television in the afternoon, but has approximately two (2) hours of homework which he does in the evening. Id. at 41. Plaintiff further testified that he does not do any chores, but occasionally goes to the grocery store with his mom. Id. at 41-42. Plaintiff also testified that he has one friend at school, but is "always nervous around people[, ]" because he feels different. Id. at 42. Plaintiff stated that between classes at school, he works at the computer or does research, but does not socialize. AR at 42. Plaintiff stated that he likes to read books like Harry Potter, as well as comedy, and can type and play games on the computer. Id. at 43. Plaintiff does not have a girlfriend; he did like one girl, but was afraid of her ex-boyfriend, so the relationship did not develop. Id. at 43-44. Plaintiff testified that would like to finish college, and work in corrections as a guard, like his older brother, or law enforcement. Id. at 45, 52, 59-60.

Plaintiff further testified that he is uncomfortable around people, because he feels like if he does something wrong people are watching and talking about him. Id. at 48, 53-54. Plaintiff also reported that he is more comfortable around younger children, than his peers. AR at 48. Plaintiff testified that he has a growth deficiency for which he receives daily injections; hormone deficiency that has resulted in delayed puberty; he is concerned about his left hip; and has hyperthyroidism.[1] Id. at 49-50. Plaintiff said that his asthma affects him "a lot" and that if he is in too much of a hurry his throat gets extremely itchy. Id. at 56. Plaintiff also stated that his hip problems were caused by his medication. Id. at 57. Additionally, his medication causes him to shake and he has problems with dizziness. Id. at 57-58.

Plaintiff testified that he also suffers from depression and anxiety, primarily centered around his fear of something bad happening to his family. Id. at 52. Plaintiff further testified that his depression sometimes appears as anger. Id. at 52-53. Plaintiff has learned breathing exercises to help him deal with these issues. Id. at 53. Plaintiff confirmed that he had told one of his counselors that sometimes he wants to hurt other people when he thinks they are laughing at him. AR at 54-55. Plaintiff also testified that he has trouble getting along with his parents, because they push him to go out. Id. at 55. Plaintiff stated that he has nightmares about bad things happening to his family, and his father wakes him up, because Plaintiff is crying in his sleep. Id. at 55-56.

Plaintiff testified that he has problems understanding things, and that he would have trouble understanding instructions. Id. at 57-58. Plaintiff stated that he would not be able to get to work without help, and that he cannot take the public bus, because he feels like people are watching him. Id. at 58-59. Plaintiff testified that his parents have encouraged him to get a job, but he does not think that he is capable of working given his limitations. Id. at 60-62. Plaintiff also indicated that he did not want to work in the summer, because he has wanted to travel with his family to Mexico. Id. at 60.

2. Plaintiff's Medical Records

On August 11, 2004, Eugene E. Campbell, Ph.D. provided a Disability Evaluation. AR at 328-32. At the time of Dr. Campbell's report, Plaintiff was twelve (12) years old, and in sixth grade, special education. Id. at 328. Dr. Campbell reported that Plaintiff did not have trouble getting along with classmates or family, and listed his medical conditions as asthma. Id. Dr. Campbell administered the WISC-III test, and reported Plaintiff's scores as Verbal IQ 65, Performance IQ 75, and Full Scale IQ 68. Id. at 329. Dr. Campbell stated that these scores fell in the borderline and intellectually deficient ranges of intellectual functioning, indicating very low intelligence. Id. Dr. Campbell further indicated that as a result, Plaintiff did not have "the intellectual potential to perform adequately in school or to remain at grade level with his same age peers." AR at 329. Dr. Campbell further noted that "[m]ental retardation is suggested by the scores, but there is a greater likelihood that borderline potential is present and that his intelligence score has been depressed by his failure to learn adequately." Id. at 329. Plaintiff's Wide Range Achievement Test - Third Edition ("WRAT3") scores also "fell in the deficient and borderline ranges of academic functioning." Id. at 330. Dr. Campbell diagnosed Plaintiff with mild mental retardation and asthma, listing stressors as asthma and school. Id. at 331. Dr. Campbell opined that Plaintiff was pleasant with good social skills, and good coordination, as well as adequate adaptive skills. Id. at 332. Dr. Campbell further reported that Plaintiff attended and completed tasks well when he understood the material, but was learning at a much slower rate than his peers. AR at 332. On October 18, 2004, Jack A. Marks, M.D. filled out a Childhood Disability Evaluation Form, indicating that Plaintiff met listing 114.05D with his impairment of mental retardation. Id. at 238-43.

On August 26, 2009, Plaintiff was seen at ACP-Clara Vista Pediatrics by Gabriel Cristello, M.D. for a routine history and physical, who prescribed asthma and allergy medications. Id. at 340. On August 28, 2009, Plaintiff was again seen by Dr. Cristello, who ordered bone age studies. Id. at 339.

On September 9, 2009, Plaintiff was seen by Priti Patel, M.D. and Chetanbabu Patel, M.D., endocrinology specialists. Id. at 348-49, 368-69. Drs. Patel noted that he presented to them with a concern for short stature, reporting that Plaintiff did "not get teased very much at school" and has delayed puberty. AR at 348, 368. Drs. Patel further indicated that Plaintiff had normal energy levels; no problems with sleep; no blurry or double vision; no difficulty swallowing or trouble with sense of smell; regular heart rate and rhythm, without murmurs; a history of asthma; no constipation or diarrhea; no bladder issues; skin clear of rashes; no joint pain or muscle weakness; and no headaches, dizzy spells, or numbness. Id. Drs. Patel diagnosed Plaintiff with delayed puberty, short stature, and elevated TSH with concern of ...

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