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Mendoza v. Colvin

United States District Court, D. Arizona

September 26, 2016

Rosendo Mendoza, Plaintiff,
v.
Carolyn W. Colvin, Acting Commissioner of Social Security, Defendant.

          ORDER

          Honorable Bruce G. Macdonald Magistrate Judge

         Currently pending before the Court is Plaintiff's Brief for Plaintiff (“Opening Brief”) (Doc. 19). Defendant filed her Corrected Brief (“Response”) (Doc. 25-1), and Plaintiff filed his Plaintiff's Reply Brief for Plaintiff (“Reply”) (Doc. 26). The Court also granted Defendant leave to file a Surreply (Doc. 31). 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 January 24, 2012, Plaintiff filed a Title II application for Social Security Disability Insurance Benefits (“DIB”) alleging disability as of April 5, 2010 due to a left shoulder due to a work accident and knee pain.[1] See Administrative Record (“AR”) at 13, 26, 49, 54-55, 59, 61, 65-66, 78, 82, 142, 172, 211, 228. Plaintiff's date last insured is September 30, 2014. Id. at 15, 57, 69, 172, 211, 228. The Social Security Administration (“SSA”) denied this application on August 23, 2012. Id. at 13, 54-60, 78-81. Plaintiff filed a request for reconsideration, and on January 16, 2013, SSA denied Plaintiff's application upon reconsideration. Id. at 13, 65-74, 82-84. On February 27, 2013, Plaintiff filed his request for hearing. Id. at 13. On November 18, 2013, a hearing was held before Administrative Law Judge (“ALJ”) Lauren R. Mathon. AR at 13, 24-48. On January 9, 2014, the ALJ issued an unfavorable decision. Id. at 10-19. On January 29, 2014, Plaintiff requested review of the ALJ's decision by the Appeals Council, and on June 12, 2015, review was denied. Id. at 1-3, 9. On August 11, 2015, Plaintiff filed this cause of action. Compl. (Doc. 1).

         B. Factual History

         Plaintiff was sixty-three (63) years old at the time of the administrative hearing and sixty (60) at the time of the alleged onset of his disability. AR at 29, 49, 54, 61, 65, 144, 172, 211, 228. Plaintiff has a sixth grade education. Id. at 49, 57, 61, 69, 176. Prior to his alleged disability, Plaintiff worked as a certified welder. Id. at 34, 198-210, 219- 28.

         1. Plaintiff's Testimony

         a. Administrative Hearing

         At the administrative hearing, Plaintiff testified, using an interpreter, that he is married, but lives alone. AR at 26, 29. Plaintiff further testified that he does his own laundry, cooking, and food shopping. Id. at 30. Plaintiff currently supports himself with his Social Security retirement. Id. at 31. Prior to receiving his retirement, and after the alleged onset of his disability, Plaintiff supported himself through worker's compensation. Id. Since April 2010, Plaintiff has travelled to California and Mexico either on the bus or in a friend's vehicle. Id. at 32-34.

         Plaintiff testified that he worked as a certified welder prior to the alleged onset of his disability, and has not worked since. AR at 34. Plaintiff further testified that he has knee and left shoulder pain. Id. at 34-35. Plaintiff testified that although he is not receiving active treatment for his knee or shoulder, but he is being treated by a pain management doctor. Id. at 35-36. Plaintiff also testified that he had two prior shoulder surgeries, and his left shoulder still bothers him a lot. Id. at 36. Plaintiff confirmed that he has difficulty lifting, gripping, and grasping with his left arm. Id. at 36-37. Plaintiff testified that as a result of these difficulties, he uses his right arm to compensate. AR at 37. Plaintiff further testified that his pain was moderately severe on an average day. Id. Plaintiff stated that his pain increases with increased activity. Id.

         Plaintiff testified that because of his knee problems, he has trouble standing for long periods. Id. at 38. Plaintiff estimated that he could stand for three (3) hours before needing to sit. Id. Plaintiff further testified that he stood for six (6) hours, approximately six (6) months prior, while waiting to cross the international border to Mexico. AR at 38-40. Plaintiff testified that after approximately three (3) hours standing in line he wanted to sit-down, but it was not possible. Id. Plaintiff further testified that his knee was very painful after standing for so long, requiring rest and massage. Id. at 40. Plaintiff testified that his knee hurts to the point of requiring massage and medication every three (3) or four (4) days. Id.

         Plaintiff testified that he is able to lift approximately ten (10) pounds from a tabletop without increasing her pain. Id. at 41. Plaintiff further testified that he takes medication for the pain, including pills and a topical cream. AR at 41. Plaintiff also testified that he lays down two (2) or three (3) times per week because of the pain. Id. at 42. Plaintiff testified that his right shoulder does not cause any problems with reaching or gripping. Id. Plaintiff testified that the pain in his legs, “a bone that's out on my right shoulder[, ]” and the problems with his left shoulder are the primary reasons that he cannot work. Id.

         b. Administrative Forms

         Plaintiff completed a Function Report-Adult in this matter. He indicated that he walks for approximately one (1) hour each day and at noon he is in the house reading or listening to music. AR at 184. After supper, Plaintiff stated that he watches television until ten (10) o'clock at night before going to bed. Id. Plaintiff indicated that he could run and exercise more safely prior to his injuries. Id. at 185. Plaintiff further indicated that he cannot sleep much due to his shoulder pain, and he has to take sleeping pills. Id. Plaintiff also testified that he has difficulty changing his clothes and bathing due to leg and shoulder pain. Id. Plaintiff does not require assistance to care for his personal needs and is able to cook his own meals every day. AR at 186. Plaintiff does chores for approximately an hour and a half each day, including laundry and ironing and cleaning the house. Id. Plaintiff goes out each day and is able to drive and use public transportation. Id. at 187. Plaintiff grocery shops for approximately an hour and a half each week. Id. Plaintiff is able to manage his money and pays his own bills. Id. Plaintiff's primary hobbies include watching television, going to baseball games, and reading. Id. at 188. Plaintiff also attends church each week. AR at 188.

         Plaintiff testified that he feels depressed since the injuries began and his ability to lift, walk, climb stairs, squat and kneel have been affected. Id. at 189. Additionally, Plaintiff can only lift 25 pounds, has pain in his knees and gets tired after walking. Id. Plaintiff estimated that he needs to rest after approximately one half hour of walking. Id. Plaintiff indicated that he uses a cane for walking. Id. at 190.

         Plaintiff also filled out an Exertional Daily Activities Questionnaire. AR at 192. Plaintiff indicated that he lives in an apartment and described his average day as getting up, making breakfast, and watching television. Id. Then, at noon he goes out to his patio to sit and listen to the radio. Id. At night, after dinner, he watches television before bed. Id. Plaintiff described his symptoms as knee pains, a lot of cramps, headaches and exasperation and upset. Id. Plaintiff indicated that he walks 10-15 minutes to the store. AR at 192. Plaintiff stated that he can only lift fifteen (15) pounds and goes grocery shopping every fifteen (15) days. Id. at 193. Plaintiff indicated that he does household chores weekly, and goes to the park to see baseball or soccer games every week or every other week. Id. Plaintiff states that he cannot stay as long at the park, because he gets tired. Id. Plaintiff also needs a nap during the day. Id. Plaintiff indicated that he uses the cane. AR at 194. Plaintiff's medications include Meloxicam, Tizanidine HCL, and Medrox. Id.

         2. Vocational Expert Valerie Williams's Testimony

         Ms. Valerie Williams testified as a vocational expert at the administrative hearing. AR at 28, 43. Ms. Williams described Plaintiff's past work as a welder, combination, Dictionary of Occupational Titles (“DOT”) code 819.384-010 as medium exertion, and a Specific Vocational Preparation (“SVP”) of 6. Id. at 43. Ms. Williams further testified that there were no transferrable skills from welder to any other medium or light occupations. Id.

         The ALJ asked Ms. Williams about a hypothetical individual with the same age, education, and vocational background as Plaintiff. Id. The ALJ asked Ms. Williams whether, assuming that such a person could “do medium level exertional work with the following additional limitations[:] postural limitations [of] . . . occasionally climb[ing] ladders; ropes; and scaffolds; . . . frequently climb[ing] ramps; stairs; balance; stoop; knell; crouch; . . . occasionally crawl; [and] reaching over head with the left arm is limited to occasional[, ]” such a person could do the job of welder. Id. at 43-44. Ms. Williams testified that such an individual would be able to do the job of welder. AR at 44. Ms. Williams further testified that there are 304, 500 welder jobs available in the national economy, and 2, 978 such jobs in Arizona. Id. The ALJ added a further restriction of being able to stand or walk two (2) hours in an eight (8) hour day to the hypothetical. Id. at 45. Ms. Williams confirmed that such a person would be restricted to sedentary work. Id.

         Plaintiff's counsel asked Ms. Williams about the ALJ's hypothetical person number one, adding a restriction to the left upper extremity of “occasional reaching; gripping; and grasping; and handling; and feeling” due to multiple surgical procedures. Id. at 45-46. Ms. Williams testified that a person with those additional restrictions would not be able to perform the job of a welder. AR at 46. Plaintiff's counsel posed a question regarding second hypothetical individual “who can lift and carry with right arm only; standing up to three-hours in a work day; never crawl; climb; push; pull; gross flame - and fine manipulations are limited to occasional with the left” and whether or not such an individual would be able to do any past work. Id. Ms. Williams testified that such an individual could not do the past relevant work of welder, and that such an individual would be relegated to light work. Id. at 47.

         Ms. Williams further testified that her testimony was consistent with her ...


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