Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Daniel v. Berryhill

United States District Court, D. Arizona

March 31, 2017

Armando Daniel, Plaintiff,
v.
Nancy A. Berryhill, Acting Commissioner of Social Security, Defendant.

          ORDER

          Honorable Bruce G. Macdonald United States Magistrate Judge

         Currently pending before the Court is Plaintiff's Opening Brief (Doc. 15). Defendant filed her Brief (“Response”) (Doc. 20), and Plaintiff filed his Reply Brief (“Reply”) (Doc. 21). Plaintiff brings this cause of action for review of the final decision of the Commissioner denying Social Security Disability Insurance Benefits (“DIB”) and Supplemental Security Income (“SSI”) disability benefits pursuant to 42 U.S.C. § 405(g) and 42 U.S.C. §1383(c)(3). 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 June 13, 2012, Plaintiff filed a Title II application for Social Security Disability Insurance Benefits (“DIB”), as well as a Title XVI application for Supplemental Security Income (“SSI”), alleging disability as of January 1, 1990 due to obstructive sleep apnea status post uvulopalatopharyngoplasty, diverticulitis, diabetes, inflammatory polyarthropathy, obesity, degenerative disc disease of the lumbar spine, adjustment disorder with mixed anxiety and depressed mood, borderline intellectual functioning, and learning disorder. See Administrative Record (“AR”) at 19, 21, 52, 70, 74, 76, 82, 86, 88, 96, 100-01, 104, 109, 113-14, 117, 198-200, 202-03, 218, 222, 227, 236, 253, 308. Plaintiff's date last insured is September 30, 1990. Id. at 21, 49, 70-71, 75, 87, 91, 100, 104, 109, 205, 243. The Social Security Administration (“SSA”) denied these applications on October 11, 2012. Id. at 19, 68-93, 122-29. Plaintiff filed a request for reconsideration, and on May 15, 2013, SSA denied Plaintiff's applications upon reconsideration. Id. at 19, 94-121, 131-36. On May 21, 2013, Plaintiff filed his request for hearing. Id. at 19, 137-38. On February 28, 2014, a hearing was held before Administrative Law Judge (“ALJ”) Laura Speck Havens. AR at 19, 46-67. On May 8, 2014, the ALJ issued an unfavorable decision. Id. at 16-33. On June 3, 2014, Plaintiff requested review of the ALJ's decision by the Appeals Council, and on July 24, 2015, review was denied. Id. at 1-7, 13-14. On September 23, 2015, Plaintiff filed this cause of action. Compl. (Doc. 1).

         B. Factual History

         Plaintiff was forty-three (43) years old at the time of the administrative hearing and nineteen (19) at the time of the alleged onset of his disability. AR at 21, 32, 49-50, 68-71, 82, 94-96, 109, 175, 179, 205, 207, 243. Plaintiff has a high school education through special education and attempted approximately two (2) semesters of college. Id. at 51, 212, 295. Prior to his alleged disability, Plaintiff worked briefly as a laborer in an automotive shop in 1996, but otherwise has no work history. Id. at 31-32, 212.

         1. Plaintiff's Testimony

         a. Administrative Hearing

         At the administrative hearing, Plaintiff testified that he received a high school diploma through special education classes and approximately two semesters of college. AR at 51, 61. Plaintiff currently lives in an apartment with his mother, who is disabled. Id. at 52-53. Plaintiff further testified that he is able to dress and bathe himself and take his medications, as well as do his own laundry, cooking, and food shopping. Id. at 53- 54, 62. Plaintiff does not have any hobbies, but watches television three (3) to four (4) hours per day. Id. at 54. He walks approximately ten (10) to fifteen (15) minutes at a time, and tries to stretch to relieve his muscle pain. Id. at 54-55.

         Plaintiff testified that he no longer has a driver's license, because it has been suspended. AR at 55. Plaintiff further testified that he had an accident where he fell asleep while driving and hit a bus. Id. at 55-56, 63. Plaintiff testified that he has problems keeping his food down, and sometimes has trouble with decreased appetite. Id. at 56-57. Plaintiff also testified that he sleeps approximately three (3) to four (4) hours per night, and wakes approximately every hour and forty-five (45) minutes. Id. at 56-57. Plaintiff testified that some of his medications, Celebrex and Plaquenil specifically, cause stomach upset and gastrointestinal distress. Id. at 58-59. Plaintiff further testified that he sees his regular doctor at least once per month, and his rheumatologist, neurologist, and stomach specialist every six (6) to eight (8) weeks. AR at 59.

         Plaintiff testified that he can stand for ten (10) to fifteen (15) minutes, and sit for thirty (30) to forty-five (45) minutes. Id. Plaintiff further testified that he could pick up ten (10) pounds using both hands. Id. Plaintiff testified that he has pain all over, but his back and leg pain is the worst. Id. at 60. Plaintiff also testified that with medication, his pain level has decreased to a five (5) out of ten (10) with ten (10) being the very worst pain. Id.

         Plaintiff testified that he is only able to write simple phrases, and needed help filling out the disability forms. AR at 51-52, 61. Plaintiff further testified that he cannot read the newspaper, but can perform simple addition and subtraction. Id. at 52, 61. Plaintiff also testified that he has difficulty staying focused or on task when directed to do multiple things. Id. at 62. Plaintiff testified that he is constantly overwhelmed due to anxiety, and because of this likes to be alone. Id.

         Plaintiff testified that he is most comfortable in a recliner or lying in bed. Id. at 63. Plaintiff further testified that he takes two (2) to three (3) hour naps every day, and will fall asleep even while doing something. AR at 63-64. Plaintiff also testified that his lupus causes him to lack energy and be severely fatigued. Id. at 64. Plaintiff testified that he no longer goes to church because he cannot alternate between sitting and standing. Id. at 65. Plaintiff also testified that his migraine headaches are less frequent with medication, but he still has them once or twice a month. Id. at 66. These headaches last from an hour or two (2), to two (2) to three (3) days. Id.

         b. Administrative Forms

         With assistance, Plaintiff completed a Function Report-Adult in this matter. AR at 217-26. Plaintiff stated that he is “unable to hold a job due to learning disability[.]” Id. at 217. He noted that cares for his twin five (5) year old daughters and can take walks. Id. at 218. Plaintiff indicated that he suffers from sleep apnea. Id. Plaintiff further indicated that he can perform his personal care without assistance, and cook meals. Id. at 219. Plaintiff also stated that he can perform household chores, and takes daily walks. AR at 220. Plaintiff is also able to shop weekly. Id. at 220-21. Plaintiff can pay bills and talks to others approximately once per week. Id. at 221.

         Plaintiff's ability to lift, squat, and bend is limited, and he can walk for approximately one quarter (1/4) of a mile before needing to stop and rest. Id. at 222. Plaintiff can pay attention for approximately thirty (30) minutes, but is unable to understand written instructions and is very limited in his ability to follow spoken instructions. Id. Plaintiff has difficulty handling stress and changes in routine. AR at 223.

         Plaintiff states that his biggest problem is his inability to under written or verbal instructions and his learning disability. Id. at 224. Plaintiff further states that his diabetes is limiting his ability to control his depression. Id.

         2. Vocational Expert Report

         The ALJ did not call a vocational expert to testify at the hearing.

         On February 14, 2014, Plaintiff was evaluated by Philip Shapiro, M.S., C.V.E., C.R.C., at counsel's behest. AR at 29, 438. Mr. Shapiro stated that Plaintiff had been “referred for a vocational evaluation to assess the client's aptitudes, abilities and physical tolerances in a variety of occupational areas in order to provide information in terms of vocational potential for use in Mr. Daniel's Social Security disability hearing.” Id. at 438. Mr. Shapiro reviewed Plaintiff's medical history as narrated by Plaintiff, as well as his educational and employment history. Id. at 438-40. Plaintiff indicated that he had earned a high school diploma through special education classes, but did not have success in college. Id. at 439.

         Mr. Shapiro administered several academic achievement tests to Plaintiff. Id. at 440. Plaintiff obtained a score at the 6.3 grade level for the Vocabulary subtest of the Nelson-Denny Reading test. AR at 441. Mr. Shapiro indicated that this score is below average for Plaintiff's age group. Id. On the untimed SRA Reading Index, Plaintiff showed proficiency in the Picture-Word Association, Word Decoding, and Phrase Comprehension subtests. Id. Mr. Shapiro stated that “[t]hese results indicate the client has the ability to read and understand simple sentences, depending on knowing the meaning of the preposition.” Id. On the Wide Range Achievement Test (“WRAT”) Spelling subtest, Plaintiff scored at the 2.8 grade level. Id. Mr. Shapiro noted that this score is considered deficient or below average for Plaintiff's age group. AR at 441.

         On the WRAT Math Computation subtest, Plaintiff scored at the 4.8 grade level. Id. Mr. Shapiro noted that this would be considered borderline or below average for his age group. Id. The test confirmed that Plaintiff is able to do simple addition and subtraction, multiplication, and division of whole numbers. Id. Mr. Shapiro opined that these test results indicate that Plaintiff “has limited functional use of reading and basic arithmetic skills for use in a variety of entry level, unskilled occupational areas.” Id.

         Mr. Shapiro reported Plaintiff scored in the average range of the Standard Raven Progressive Matrices Test, and opined that Plaintiff has the “potential for occupations requiring nonverbal problem-solving skills of an abstract nature.” AR at 442. Mr. Shapiro further reported that Plaintiff scored below average on the Oral Directions Test (“ODT”), but that Plaintiff “demonstrated the ability to follow simple verbal instructions with demonstrations.” Id. Mr. Shapiro also reported that Plaintiff “scored in the below average range for fine finger and hand dexterity.” Id. Mr. Shapiro stated that this result indicates that Plaintiff “has poor potential for jobs requiring the rapid manipulation of small tools, instruments, and objects, such as assembly line work or jobs requiring a quota system.” Id. Mr. Shapiro stated that Plaintiff “scored in the below average range for time and in the average range for errors” on the Minnesota ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.