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Gonzales v. Colvin

United States District Court, D. Arizona

September 29, 2016

Elizabeth S. Gonzales, Plaintiff,
v.
Carolyn W. Colvin, Acting Commissioner of Social Security, Defendant.

          ORDER

          BERNARDO P. VELASCO, UNITED STATES MAGISTRATE JUDGE

         Plaintiff 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.

         I. Procedural History

         In 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.

         II. The Record on Appeal

         A. Plaintiff's Background and Statements in the Record

         Plaintiff was born on August 27, 1956[1]. (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[2] 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. at 220).

         Plaintiff 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).

         Plaintiff 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).

         Plaintiff 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).

         In 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).

         B. Pertinent medical opinions

         1. Treating Physicians

         The 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).

         The 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 original).

         2. Examining Dr. Hassman

         In 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.).

         Dr. 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).

         III. The ALJ's Decision

         A. Claim Evaluation

         Whether 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).”[3] 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 experience.” Id.

         B. The ALJ's Findings in Pertinent Part

         The ALJ 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).

         The ALJ found that Plaintiff's impairments did not meet a listing. (Id.). He found that Plaintiff had the RFC to:

perform medium work as defined in 20 CFR [§] 404.1567(c) and 416.967(c)[4] 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 ...


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