United States District Court, D. Arizona
Elizabeth S. Gonzales, Plaintiff,
Carolyn W. Colvin, Acting Commissioner of Social Security, Defendant.
BERNARDO P. VELASCO, UNITED STATES MAGISTRATE JUDGE
Elizabeth Gonzales filed the instant action pursuant to 42
U.S.C. § 405(g) seeking review of the final decision of
the Commissioner of Social Security. Pursuant to 28 U.S.C.
§ 636(c), the parties have consented to proceed before
the Magistrate Judge for all proceedings in this case. (Doc.
14). Pending before the Court are Plaintiff's Brief (Doc.
19), Defendant's Brief (Doc. 23), and Plaintiff's
Reply Brief (Doc. 24). For the following reasons, the Court
remands the matter for further proceedings.
March 2012, Plaintiff filed applications for disability
benefits and supplemental security income under the Social
Security Act. (Doc. 19 at 2; Transcript/Administrative Record
(Doc. 16) (“Tr.”) at 35; see also Tr. at
167-74). Plaintiff alleges that she has been unable to work
since June 30, 2010 due to arthritis of both knees, varicose
veins, and hammer toes. (Tr. at 169, 215, 219). After
Plaintiff's applications were denied initially and upon
reconsideration, she requested a hearing before an
Administrative Law Judge (“ALJ”). (Doc. 19, at
2). On July 23, 2013, the matter came on for hearing before
ALJ Normal Buls where Plaintiff, who was represented by
counsel, testified. (Tr. at 17-31). On August 21, 2013, the
ALJ issued an unfavorable decision. (Tr. at 35-41). The
Appeals Council subsequently denied Plaintiff's request
for review, thereby rendering the ALJ's August 21, 2013
decision the final decision of the Commissioner. (Tr. at
1-5). Plaintiff then initiated the instant action.
Record on Appeal
Plaintiff's Background and Statements in the Record
was born on August 27, 1956. (Tr. at 20, 167, 169).
She is five feet, three inches tall and, on the date of the
hearing, she weighed 254 pounds. (Tr. at 20). She graduated
from high school and completed two years of college.
(Id.). Plaintiff worked as a teacher's
aide from 1999 until she was laid off in
2010. (Tr. at 22-23, 220). Additionally, since 2004 through
the date of the hearing before the ALJ, Plaintiff has also
worked an average of two hours per week as a merchandiser for
a greeting card company, which requires her to go to a store
to sort greeting cards and put them in order. (Tr. at 21,
220). From October 2011 to February 2012, Plaintiff also
worked as a tutor, one hour per day, three days a week. (Tr.
testified that her work as a teacher's aide was
terminated due to budget cuts. (Tr. at 23). By the time she
stopped working as a teacher's aide, she was
“already having problems going up steps. I cannot do
steps.” (Id.; see also Tr. at 30).
She also has difficulty standing and walking for too long due
to her knees. (Tr. at 23; see also Tr. at 30
(Plaintiff has difficulty walking long distances); Tr. at 27
(Plaintiff's varicose veins also interfere with her
ability to stand)). When the ALJ asked Plaintiff how long she
can stand, Plaintiff responded that she could stand for
“[n]o more than an hour and a half or two hours”
before needing to sit down and rest for a while. (Tr. at
23-24). She also testified that after standing 40 minutes,
she has to sit down and take a 10-15 minute break before
being able to stand up and walk around again because her
varicose veins “start getting numb-tingling on the side
of my left leg. . . . And my knees start to hurt.” (Tr.
at 27). Plaintiff stated that she would be unable to work as
a merchandiser full-time because she would not be able to
“stand that long.” (Tr. at 25). Further, in her
current work two hours a week as a merchandiser, she has
difficulty walking around the store and she must hold onto a
cart or use a cane because her knees buckle and she loses her
balance. (Tr. at 26 (Plaintiff began using a cane on her
own)). Plaintiff also experiences numbness in her left thigh
from varicose veins when sitting longer than 20 minutes at a
time, so she has to get up. (Tr. at 28). Plaintiff also
experiences pain at the left side of her back and in her hip.
(Tr. at 28-29).
testified that she has not “gone often to a doctor
because I don't have money or insurance to get more
physical facts.” (Tr. at 23). Plaintiff's
statements to medical providers also reflect that cost and
lack of insurance affected her ability to obtain medical
care. (See e.g., Tr. at 297 (In October 2010,
Plaintiff told Dr. Ellinas that “‘I am unemployed
so I don't have money so I didn't come when I was
supposed to. I didn't get anything done.'”);
Tr. at 332 (In April 2010, Plaintiff stated to Dr. Ellinas
that she didn't “come when I was supposed
to…” because she is unemployed and has no
money.); Tr. at 293 (Dr. Ellinas noted in March 2011 that
Plaintiff was “still on Synthroid ‘it had
refills' but otherwise no insurance to pay for
meds”); Tr. at 347 (In February 2013, Plaintiff told
Dr. Ellinas that she did not do follow up lab work because
she was sent a “big bill”, and Dr. Ellinas'
treatment note also reflects: “If manages to get
insurance she will need Vascular referral.”); Tr. at
332 (In February 2013, Dr. Ellinas wrote a note “to
whom it may concern” requesting Plaintiff be provided
with “health insurance as patient has chronic medical
issues that need immediate workup by orthopedic and vascular
surgery specialists”)). Plaintiff also testified that
she has not undergone treatment for varicose veins because
she does not have insurance, and she has not had treatment
for back and hip pain because “the doctors have to
refer me to other doctors, and I don't have the
money.” (Tr. at 28-29).
testified that is she divorced and lives with her son who
helps her with laundry, cleaning the house and cooking. (Tr.
at 20-24; see also Tr. at 29 (Plaintiff does not
stand for long periods when cooking)). Plaintiff stated that
it takes her about two hours to do laundry on her own, with
three 15-minute rest periods. (Tr. at 227). She can vacuum,
sweep, mop and dust for about one and one-half hours with
three 15-minute rest periods. (Id.). Plaintiff never
learned to drive, so she uses a shuttle bus, or her daughter
or sister will drive her places. (Tr. at 21, 24, 227).
addition to medication for high blood pressure,
hypothyroidism, and acid reflux, Plaintiff also takes 800 mg
ibuprofen and Cyclobenzaprine for pain, including muscle
pain. (Tr. at 243, 287).
Pertinent medical opinions
record reflects that Plaintiff was treated by Doctors Karam
Makhni and Panayoitis Ellinas, both of Copper Queen Medical
Associates. November 2012 radiological examination of
Plaintiff's knees, ordered by Dr. Makhni, reflected
moderate bicompartmental narrowing and early degenerative
changes bilaterally. (Tr. at 309). Imaging performed in
December 2012 revealed mild degenerative changes in both
knees and no acute abnormalities in Plaintiff's right
foot, although mild hallux valgus was noted. (Tr. at 320-23).
record contains Dr. Makhni's undated “Medical
Opinion Re: Ability To Do Physical Activities”
reflecting his diagnosis of osteoarthritis in both knees and
indicating that Plaintiff's prognosis was “good to
fair with physical therapy.” (Tr. at 314) (all
capitalization omitted). Dr. Makhni opined that Plaintiff
could sit continuously for 2 hours at a time, and she could
sit at least 6 hours during an 8-hour workday, with normal
breaks. (Id.). He also stated that Plaintiff could
walk up to 2 city blocks without rest, but would need a cane
if she walked a greater distance. (Tr. at 315). Plaintiff
could stand continuously for 45 minutes, and she could stand
for a total of 2 hours during an 8-hour workday, with normal
breaks. (Tr. at 314). He indicated that Plaintiff needed to
shift positions at will from sitting, standing or walking,
and that she would need to take unscheduled breaks, lasting
about 10 minutes each, once every hour. (Id.).
Plaintiff could occasionally twist and stoop but she should
never crouch, climb stairs, or ladders. (Tr. at 316). The
record also reflects an April 2010 note from Dr. Ellinas that
Plaintiff should “limit ANY climbing stairs
due to severe knee disease.” (Tr. at 331) (emphasis in
Examining Dr. Hassman
August 2012, Plaintiff presented to consulting examiner Jeri
Hassman, M.D. (Tr. at 300-06). Plaintiff, who is five feet,
three inches weighed 255 pounds on the day of the
appointment. (Tr. at 301). On examination, Dr. Hassman noted,
in pertinent part, that Plaintiff's “gait was
essentially normal.” (Tr. at 301). Plaintiff “had
slight difficulty with toe walking because of pain in her
toes, and she complained of ‘hammertoes.'”
(Id.). Plaintiff “refused to hop on either
foot because of bilateral knee pain.” (Id.).
She bent down to pick something up from the floor in a
“slightly unusual way” in a lunge-type position
keeping her right knee in flexion and bending forward from
the waist. (Id.). She was unable to kneel
completely. (Id.). Plaintiff had “full range
of motion of both knees but slight pain and stiffness with
range of motion of both knees, left worse than right.”
(Tr. at 302). There was no specific medial or lateral joint
tenderness and no “varus or valgus or anterior or
posterior instability of the knees. She had a negative
McMurray sign of both knees.” (Id.) There was
minimal crepitus in both knees. (Id.). Dr. Hassman
also noted moderate varicosities in both claves.
(Id.). On examining Plaintiff's feet, Dr.
Hassman found “a bunion of the left foot but minimal
hallux valgus....” (Id.). Plaintiff also had
“hammering and fixed flexion of the interphalangeal
joint of bilateral second toes but no obvious hammering of
the third, fourth, and fifth toes bilaterally. She was able
to stand on both feet in bare feet without any complaints of
pain in her feet.” (Id.).
Hassman's diagnoses included:
1. Probably degenerative joint disease, both knees, left
slightly more symptomatic than right. She had minimal
crepitus in both knees but full range of motion and no
instability and a negative McMurray sign.
2. Moderate varicosities, both calves.
3. Morbid obesity.
4. Mild to moderate bunion and hallux valgus, left foot, with
hammering both feet, mostly involving bilateral second toes.
(Tr. at 302-03)). Dr. Hassman completed a “Medical
Source Statement of Ability To Do Work-Related Activities
(Physical)” indicating that Plaintiff's conditions
were expected to impose limitations for 12 continuous months.
(Tr. at 303) (all capitalization omitted). Dr. Hassman opined
that Plaintiff could lift/carry up to 50 pounds occasionally
and 25 pounds frequently. She stated that Plaintiff could
stand and/or walk at least 6 to 8 hours in an 8-hour day, and
she went on to state: “She may need to take a rest
break at least every hour.” (Id.). As support
for the recommended limitations on standing and walking, Dr.
Hassman cited Plaintiffs “[p]robable degenerative joint
disease, both knees” and “complaints of
bilateral foot pain, and she does have hammering of bilateral
second toes both a bunion on the left foot.”
(Id.). Dr. Hassman indicated that Plaintiff was
unlimited in sitting. (Id.). She further stated that
Plaintiff was limited to occasional: climbing of ramps,
ladders, stairs, ropes and scaffolds; stooping; kneeling;
crouching; and crawling. (Tr. at 305).
The ALJ's Decision
a claimant is disabled is determined pursuant to a five-step
sequential process. See 20 C.F.R. §§404.1520,
416.920. To establish disability, the claimant must show
that: (1) she has not performed substantial gainful activity
since the alleged disability onset date (“Step
One”); (2) she has a severe impairment(s) (“Step
Two”); and (3) her impairment(s) meets or equals the
listed impairment(s) (“Step Three”). “If
the claimant satisfies these three steps, then the claimant
is disabled and entitled to benefits. If the claimant has a
severe impairment that does not meet or equal the severity of
one of the ailments listed…, the ALJ then proceeds to
step four, which requires the ALJ to determine the
claimant's residual functioning capacity
(RFC).” Dominguez, 808 F.3d at 405.
“After developing the RFC, the ALJ must determine
whether the claimant can perform past relevant work….
If not, then at step five, the government has the burden of
showing that the claimant could perform other work existing
in significant numbers in the national economy given the
claimant's RFC, age, education, and work
ALJ's Findings in Pertinent Part
determined that Plaintiff had the following severe
impairments: arthritis of the bilateral knees. (Tr. at 37).
To support this determination, the ALJ stated that
“[t]he medical evidence of record documents that the
claimant exhibits symptoms that are consistent with
degenerative joint disease of her bilateral knees, with the
left slightly more symptomatic than the right….The
claimant reported chronic pain and difficulty climbing
stairs.” (Tr. 38).
found that Plaintiff's impairments did not meet a
listing. (Id.). He found that Plaintiff had the RFC
perform medium work as defined in 20 CFR [§] 404.1567(c)
and 416.967(c) except that [she] may only occasionally
climb ramps or stairs, or ladders, ropes or scaffolds. The
Claimant may only occasionally stoop, kneel, crouch or crawl.
(Id.). Based upon Plaintiff's RFC, the ALJ found
that Plaintiff “is capable of performing past relevant
work as a teacher's aide[, ]” as that work is
actually and generally performed. (Tr. at 41). Therefore, the
ALJ determined that Plaintiff is not disabled under the
Social Security Act from June 30, 2010 through the date of
his decision. (Id.). In making his determination,
the ALJ gave “controlling weight” to ...