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Miller v. Colvin

United States District Court, D. Arizona

March 30, 2016

James S. Miller, Plaintiff,
v.
Carolyn W. Colvin, Acting Commissioner of Social Security, Defendant.

ORDER

HONORABLE BRUCE G. MACDONALD UNITED STATES MAGISTRATE JUDGE.

Currently pending before the Court is Plaintiff’s Brief-Social Security (“Opening Brief”) (Doc. 15). Defendant filed her Brief (“Response”) (Doc. 16), and Plaintiff filed his Plaintiff’s Reply Brief-Social Security (“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 March 23, 2012, Plaintiff filed a Title II application for Social Security Disability Insurance Benefits (“DIB”) alleging disability as of December 31, 2010 due to degenerative arthritis and type 2 diabetes mellitus. See Administrative Record (“AR”) at 19, 21, 33, 35, 39-43, 47-49, 52, 55, 62, 122, 129, 141, 155, 172, 180. Plaintiff’s date last insured is June 30, 2016. Id. at 21, 40, 48, 141, 170, 178. The Social Security Administration (“SSA”) denied this application on July 2, 2012. Id. at 19, 39-46, 55-57. On July 17, 2012, Plaintiff filed a request for reconsideration, and on November 29, 2012, SSA denied Plaintiff’s application upon reconsideration. Id. at 47-54, 58, 62-64. On December 17, 2012, Plaintiff filed his request for hearing. Id. at 19, 65-66. On June 24, 2013, a hearing was held before Administrative Law Judge (“ALJ”) Peter J. Baum. AR at 19, 28-38. On July 22, 2013, the ALJ issued an unfavorable decision. Id. at 16- 24. On August 29, 2013, Plaintiff requested review of the ALJ’s decision by the Appeals Council, and on November 26, 2014, review was denied. Id. at 1-3, 13. On January 22, 2015, Plaintiff filed this cause of action. Compl. (Doc. 1).

B. Factual History

Plaintiff was sixty-two (62) years old at the time of the administrative hearing and sixty (60) at the time of the alleged onset of his disability. AR at 31, 39-40, 47-48, 122, 141, 170, 178. Plaintiff obtained a high school diploma. Id. at 31, 39, 47, 156. Prior to his alleged disability, Plaintiff worked in the copper mining industry, most recently as a maintenance superintendent. Id. at 32, 132-34, 156, 164-69, 186-88. Since that time he has worked briefly at Lowe’s Home Improvement. Id. at 33-34, 140, 148, 186, 188.

On June 11, 2012, Plaintiff filled out an Exertional Daily Activities Questionnaire, indicating that on an average day he “walk[s] around for approx: 30 min[utes.]” Id. at 161. Plaintiff reported that “as pain gets worse steps shorten and take more rest stops use [A]dvil for pain no more than 2-200 mg tabs a day.” AR at 161. Plaintiff further reported “[b]roncides night sweats use of inhailer [sic] 3-x a day[, ] still have shortness of breath.” Id. Plaintiff indicated that he grocery shops, as well as household chores including “vacuum[ing], dust[ing], dishes, clean[ing] toilet and showers[, ] mop[ping] floors, clean[ing] appliances (stove, ref[rigerator], dish washer).” Id. at 162. Plaintiff reported that he must “quit after each chore to rest.” Id. Plaintiff further reported being able to drive a car. Id. Plaintiff also indicated that he cleans the yard, provides for two (2) dogs, waters the garden, and mows the grass. AR at 162. Although he did these chores prior to becoming disabled, Plaintiff states that now “it takes a lot longer, if not the next day.” Id. Plaintiff reports resting for two (2) hours “halfway through the day.” Id. Plaintiff lists several medications and indicates that he also had stents placed in his coronary arteries, has diabetes, pain in his knees and ankles, and requires the use of an inhaler. Id. at 163.

On appeal, Plaintiff completed a Disability Report - Appeal (Form SSA-3441), indicating that he has “arthritis in both ankles and Neuritis in both feet.” Id. at 172. Plaintiff reported that “the degenerative arth[r]itis has gotten worse in both . . . hips and back.” AR at 172. Additionally, Plaintiff stated that the “condition with [his] hips and back and feet has hindered the activities with [his] grandkids[, ] [and] the pain in [his]hips and back have gotten worse and [his] feet has slowed [him] down from being active, walks and jogging[.]” Id. at 176.

1. Plaintiff’s Testimony

At the administrative hearing, Plaintiff testified that he has a high school diploma. AR at 31. Plaintiff further testified that he worked in the copper mining industry as a maintenance superintendent until he retired in December 2010. Id. at 32. Plaintiff was a working superintendent, supervising sixty-five (65) people. Id. at 33. Plaintiff also testified that his legs and feet gave him trouble, and he was on his feet most, if not all of his shift, carrying pipes and other equipment. Id. After retirement, Plaintiff worked at Lowe’s for a short period; however, his feet were too painful standing on the concrete floor for an entire shift, so he resigned. Id. at 33-34.

Plaintiff confirmed that he is receiving some retirement income. AR at 34. Plaintiff also confirmed that if he tried to return to his former mining employment, he would be unable to perform the job due to having to be on his feet most of the day. Id. at 34-35. Plaintiff testified that he was diagnosed with arthritis in his thumb joint, including two nodules on the tendon approximately three (3) weeks prior to the hearing. Id. at 35.

2. Plaintiff’s Medical Records

On December 10, 2009, Plaintiff saw Imran Ata, M.D. at Pima Health for a follow-up regarding his “P[ercutaneous] T[ransluminal] C[oronary] A[ngioplasty] of osteal disease of P[atent] D[uctus] A[rteriosus] and stent to mid R[ight] C[oronary] A[rtery] eccentric plaque last month.” AR at 381-83. Plaintiff’s physical examination was unremarkable. Id. at 381. On April 8, 2010, Plaintiff followed-up with Dr. Ata for his Coronary Artery Disease and Hyperlipidemia. Id. at 379-80, 393-94. Plaintiff reported “[d]oing very well” and that he had been taking Toprol XL. Id. at 379, 393. Plaintiff’s physical examination was unremarkable. Id. at 380, 394. Dr. Ata continued Plaintiff’s current medical therapy, but decreased his Aspirin dosage to 81 mg daily. AR at 380, 394. On July 8, 2010, Plaintiff ...


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