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Nevarrez v. Colvin

United States District Court, D. Arizona

August 18, 2016

Carmen Nevarrez, Plaintiff,
v.
Carolyn W. Colvin, Acting Commissioner of Social Security, Defendant.

          ORDER

          Leslie A. Bowman United States Magistrate Judge.

         The plaintiff filed this action for review of the final decision of the Commissioner for Social Security pursuant to 42 U.S.C. § 405(g). (Doc. 1)

         The Magistrate Judge presides over this case pursuant to 28 U.S.C. § 636(c) having received the written consent of both parties. (Doc. 13)

         The court finds the ALJ’s decision that Nevarrez can return to her previous work as a hotel housekeeper is supported by substantial evidence and free from legal error.

         PROCEDURAL HISTORY

         On May 31, 2012, Nevarrez filed for disability insurance benefits pursuant to Title II of the Social Security Act and supplemental security income pursuant to Title XVI. (Tr. 211) She was 38 years old. Id. Nevarrez alleged disability beginning on October 15, 2011, due to “thyroid problems, muscle pains, dizzy spells, nausea, depression, anxiety, bone pains, [and] heart problems.” (Tr. 211, 235) Her claims were denied initially and upon reconsideration. (Tr. 120-122; 123-126); (Tr. 130-132, 133-135) Nevarrez requested review and appeared with counsel at a hearing before Administrative Law Judge (ALJ) Larry Johnson on January 14, 2014. (Tr. 40-61) In his decision, dated March 28, 2014, the ALJ found Nevarrez was not disabled because she could return to her past work as a hotel housekeeper. (Tr. 27-35)

         Nevarrez appealed and submitted an additional exhibit, but the Appeals Council denied review making the decision of the ALJ the final decision of the Commissioner. (Tr. 1-5) Nevarrez subsequently filed this action appealing that final decision. (Doc. 1) She argues the ALJ improperly evaluated her medical impairments such as her obesity and fibromyalgia. (Doc. 18)

         Claimant’s Work History and Medical History

         Between August of 2005 and August of 2007, Nevarrez worked in a hotel as a housekeeper. (Tr. 266) Between September of 2007 and October of 2011, she worked as a custodian at a casino. (Tr. 266) She states she stopped working on October 15, 2011 “because of my condition(s).” (Tr. 235)

         In September of 2012, Nevarrez was examined by Jerome Rothbaum, M.D., for the disability determination service. (Tr. 421) Nevarrez’s chief complaints were “depression, thyroid problem, and heart problem.” Id. Rothbaum noted that her medical history including a thyroidectomy, fracture of the right ankle, inguinal hernia repair, and gallbladder removal. Id. Rothbaum’s impression reads as follows: morbid obesity; status post thyroidectomy for hyperthyroidism, current hypothyroidism being treated; depression/anxiety; hypertension; GERD (gastroesophegeal reflux disease). (Tr. 423) Rothbaum opined that Nevarrez’s conditions would not result in any functional limitations lasting for 12 continuous months. (Tr. 424)

         In September of 2012, Valeria Malak, M.D, reviewed the medical record for the disability determination service and offered an opinion of Nevarrez’s physical limitations. She opined that Nevarrez could lift 20 pounds occasionally and 10 pounds frequently. (Tr. 76) She could sit, stand, and/or walk for 6 hours in an 8-hour day. (Tr. 76) She had no postural or environmental limitations. (Tr. 76) Malak’s opinion suggests that Nevarrez can perform light work. See 20 C.F.R. §§ 404.1567(b), 416.967(b). In February of 2013, Karl K. Boatman, M.D., performed a similar review of the medical record and reached the same opinion of Nevarrez’s physical limitations. (Tr. 104-05)

         In October of 2012, Nevarrez was examined by psychiatrist Hunter Yost, M.D., for the disability determination service. (Tr. 429) Yost’s diagnosis reads as follows: Axis I, mood disorder with mild depressive features due to multiple chronic painful medical conditions; Axis II, no diagnosis; Axis III, severe obesity, chronic endometriosis, back pain, hypertension, hypothyroidism; Axis IV, social support with family; Axis V, current GAF (global assessment of functioning) 61 to 70. (Tr. 430) Yost opined that Nevarrez had no mental limitations that would be expected to last 12 continuous months. (Tr. 431)

         In October of 2012, Alvin Smith, Ph.D., reviewed the medical record for the disability determination service and offered an opinion of Nevarrez’s psychological limitations. (Tr. 75) Smith opined that Nevarrez suffered from an affective disorder, which was non-severe. (Tr. 74-75) In February of 2013, Burnard Pearce, Ph.D., performed a similar review of the medical record and reached the same opinion of Nevarrez’s psychological limitations. (Tr. 102-03)

         In May of 2013, Maria Robles, PA-C, completed a Medical Work Tolerance Recommendation form. She opined that Nevarrez could perform sedentary work but not light work. (Tr. 553) Nevarrez could stand for 60 minutes, sit for 30 minutes, and walk for 10 minutes. Id. She would be expected to miss an average of four workdays per month due to her disabilities and normal illnesses. (Tr. 554)

         Nevarrez appeared with counsel before the ALJ on January 14, 2014. (Tr. 42) Nevarrez testified that she last worked at Casino Del Sol cleaning bathrooms and cleaning the casino areas. (Tr. 45) She stopped work because the work “was very demanding physically” and she “had to bend over a lot” and “was in a lot of pain.” (Tr. 45)

         She testified that she has pain in her hands, ankles, knees, and back. (Tr. 46) She takes ibuprofen, Cymbalta, and codeine. (Tr. 46) Nevarrez stated that she can stand for 30 minutes and sit for 45 minutes. (Tr. 51) She can walk for about 15 minutes. (Tr. 51)

         Nevarrez lives with her husband and two children. (Tr. 53) She does not go to church or visit with friends on a regular basis because of her depression. (Tr. 53)

         Kathleen McAlpine testified as a vocational expert. (Tr. 56) She stated that Nevarrez’s hotel housekeeping job was light, unskilled work. (Tr. 56) Her casino housekeeping job was medium, unskilled work. (Tr. 56) McAlpine testified that a person limited to sedentary work, who could stand for 60 minutes, sit for 30 minutes, and walk for 10 minutes at one time and who would be expected to miss four days of work per month would be disabled. (Tr. 58-59) A person who could perform light work and stand, walk, or sit for 6 hours in an 8-hour day could work in Nevarrez’s prior job as a housekeeper. (Tr. 59-60)

         CLAIM ...


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